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  Details from Paula Woodward's book
Posted by: jameson245 - 03-01-2017, 12:03 PM - Forum: Christmas Day, 1996 - Replies (2)

"The kids ran into he bedroom at 6:30 that morning," John remembered.  "They were thrilled.  I made them wait in our room until I went down and turned on the Christmas tree lights.  I brought in Patsy's bike from the garage. Burke and JonBenét's new bikes were already in front of the tree."

(So much for the theory that Burke killed his sister because she got a bike and  he did not.)

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  Ramseys barely spoke to each other on Dec. 26th
Posted by: jameson245 - 02-28-2017, 10:20 AM - Forum: Disproving Myths - No Replies

Ann Bardach, in her early Vanity Fair article, wrote the Officer French said the Ramseys "had barely spoken to or looked at each other", that "he did not see them console each other. 

But in French's police report BPD #5-3844, from the transcript of a formal interview done in January, 1997, we find "John Ramsey does do some touching of Patsy at the scene."

And, in Paula Woodward's book we also have the victims' advocate on record.  "Patsy and John had been in the formal dining room together for some time holding each other or talking." "I didn't know they were in there alone together."  BPD #5-2630

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  quotes found in police reports
Posted by: jameson245 - 02-28-2017, 10:12 AM - Forum: December 26th - Replies (4)

Unfortunately, Paula Woodward did not name the authors of these quotes, but she did cite the police reports that included them.    Maybe one day she will put names to the quotes.  But here, from her book...

BPD #5-433 - "Patsy was literally in shock.  Vomiting, hyperventilating."

BPD #1-640 - "Patsy cries all the time."

BPD #5-230 - "During the initial ransom demand time Patsy was hysterical, just absolutely hysterical."

BPD #5-404 - "She is hyperventilating, She is hallucinating.  She is screaming.  She wa hysterical. John was pacing around.  (Close family friends) were trying to keep Patsy from fainting. She was vomiting a little."

BPD #5-437 - "I thought Patsy was going to have a heart attack and die.  I thought she was going to kill herself."

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  Peering through splayed fingers
Posted by: jameson245 - 02-28-2017, 09:57 AM - Forum: Disproving Myths - No Replies

Despite Vanity Fair's story that indicated the Officer French thought there was something strange about how the Ramseys were acting that morning, and the story has Patsy "peering at him through splayed fingers", police reports actually say nothing of the sort.

In her book, Paula Woodward quotes a BPD report - #5-3851)  "Officer French thinks the Ramseys are acting appropriately at the scene."   

Paula writes, "nowhere in the initial Boulder Police Department reports or excerpts of officer interviews obtained since 1997 does Officer French refer to Patsy as "peering at" or "watching' him on the morning of December 26, 1996."

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  info on Wolf suit, later dismissed
Posted by: jameson245 - 02-27-2017, 07:00 PM - Forum: Darnay Hoffman - No Replies

Chris Wolf, a Boulder County journalist represented by his attorney, Darnay Hoffman of New York, filed a $50 million. dollar lawsuit on May 2000 in U.S. District Court in Atlanta claiming libel, slander, and intentional infliction of emotional distress.

Wolf claims in the Ramsey's book, "Death of Innocence," they libelously portrays him as a suspect in the murder.

From the Boulder Weekly article, "John Ramsey's prime suspect," "Chris Wolf was a former reporter for the Colorado Daily and former editor of the Louisville Times. Although police cleared Wolf, the Ramseys won't give it up.

On Good Morning America, Larry King Live, 20/20 and other recent TV shows, John Ramsey has spoken of Wolf as the man he was almost convinced killed JonBenet."



June 12, 2000
Amended Complaint for Libel and Slander


August 2, 2000
Wolf's Opposition to Ramsey' motion to dismiss


April 3, 2001
Summary of the 17 page formal answer filed

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  5/1/00 - Darnay and Chris Wolf on O'Reilly
Posted by: jameson245 - 02-27-2017, 06:58 PM - Forum: Darnay Hoffman - No Replies

O'Reilly Factor, Fox News
05.01.00
Host: Bill O'Reilly
Guests: Chris Wolfe and Darnay Hoffman


B.O.: In the Unresolved Problem Segment tonight: Who Killed JonBenet Ramsey. The cops can't solve the mystery, so now the case is being played out in books and in unproven accusations. In the Ramseys' book, The Death of Innocence, the couple writes about free-lance Denver journalist, Chris Wolfe: "Whatever the police's intentions, Wolf went on our suspect list. He represented too many unanswered questions." And during a Today Show interview, Katie Couric asked the Ramseys about Mr. Wolfe. Here's what John Ramsey said. ". . . he'd been widely mentioned in the news, and we wanted to clarify the facts that we knew. I can tell you - 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.'"
With us now from Denver is Chris Wolfe, and here in the studio is his attorney, Darnay Hoffman, who has been a critic of the Ramseys all along. We must say that Mr. Wolfe is filing a major lawsuit against the Ramseys. Now, you have been cleared by the Boulder police, Mr. Wolfe. You're not a suspect in the case any longer, but you were a suspect in the beginning due to your girlfriend, and how did that happen and what did she say?
CW: I'm not sure exactly what she said, but it must have been something that . . . about me . . . regarding the murder of the little girl, which of course I had nothing to do with. I could never and would never do anything like that. But I think that she was angry with me and for personal reasons, I guess, as far as regarding our relationship, and I think that she wanted to make my life miserable, and I think that she succeeded.
BO: Why didn't you sue her, first of all?
CW: Well, we have a long history, and we were at one time very close friends. At this point I still have a great deal of sympathy for her and I don't have malice toward her, so I didn't want to . . .
BO: All right. So you've never met the Ramseys, never come into contact with the family at all?
CW: Never. Never heard of either of them or their daughter prior to the murder of the little girl.
BO: Were you anywhere near the house, was there any . . .
CW: No.
BO: Nothing.
CW: No.
BO: Now, when the police came to the door to ask you questions, what was your reaction?
CW: Well I was shocked and I was angry and I refused to answer questions initially. They first tried to interrogate me and asked me to give handwriting samples and such maybe like a month after the murder, and I refused. It wasn't until more than a year later that I heard from them again and they asked me - they called me at work and asked me to come to the police station to give handwriting and DNA and hair and palm prints, and of course a lot had happened in that period of time, and I was more inclined to cooperate with them at that point, which I did that afternoon. I went directly to the police station after work and provided them with a lengthy handwriting sample, hair and DNA samples, as well as palm prints. That's all they asked from me.
BO: All right. So the first time, would you chalk up the first refusal to being nervous or being . . .
CW: No, not nervous at all, but just outraged - just shocked that they would be interested in me. I have no criminal record and no history of any of these things, breaking and entering, sex with children, or violent act against any person. I've never committed any of those crimes or ever been accused of those crimes.
BO: All right, and we will tell the audience again that the Boulder police cleared you so that you don't have to worry about any recriminations from this broadcast. Now, counselor, you've filed this lawsuit against the Ramseys. How much is it for again?
DH: It's for fifty million dollars.
BO: Fifty million dollars!
DH: Twenty-five per parent.
BO: In New York instead of Colorado?
DH: Well, to begin with, Colorado really isn't the appropriate venue. Atlanta, Georgia, is the appropriate venue because the federal rules generally require you to file a suit where the defendants are located. However, there's a special problem here. In Atlanta, the legal community is so put off by this case that it's impossible to get an Atlanta lawyer to agree to appear as local counsel along with me on behalf of Chris Wolfe.
BO: Really? You can't get one Georgia lawyer?
DH: Couldn't find one. Now maybe one will come out of the woodwork at this point, but up until today I have not been able to find a single Georgia lawyer. And they all said, "Hey look, we have nothing against you as an attorney." Simply, this case is so ugly, so unpleasant, so vile, that they don't want to touch it in Atlanta.
BO: That's amazing! I mean, lawyers with ethics in Georgia (laughing) . . .you can't . . . I mean, somebody, somebody should be outraged about this guy, Chris. I mean, he's unjustly accused, it seems like, and he has a right to some redress of grievances. But the actual accusation took place in Colorado, and that's where the private investigators were hired to spy on him, right?
DH: Yeah, but a lot of the activity actually occurred in New York, particularly the most recent activity where the tapings for the book promotion were done at studios in New York City.
BO: Katie Couric and all that.
DH: Exactly. So you could certainly make the claim that the most recent activity has been in New York City. However, frequently when you can't go into a venue where you can get a fair trial for a client they move it out of state. They did that with the Oklahoma City bombing. It was moved to Denver.
BO: Yeah, I know, I know. I don't know whether they're going to throw this out or not in New York, but they probably will hear it, don't you think?
DH: Oh, they'll hear it, and there may be a - the most they'll do is transfer it into Atlanta for some attorney to basically . . .
BO: Well, after this broadcast I guarantee you you'll be hearing from an attorney because, you know, it seems to me that Mr. Wolfe has a very legitimate claim here. I wouldn't want that accusation leveled at me. Keep us posted will you, gentlemen, both of you?
THE END

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  5/24/2000 on polygraphs
Posted by: jameson245 - 02-27-2017, 06:56 PM - Forum: Darnay Hoffman - No Replies

SHOW: FOX THE EDGE WITH PAULA ZAHN (22:20:00 ET)
May 24, 2000, Wednesday

: Does Passing a Lie Detector Test Take Suspicion off of John and Patsy Ramsey?

GUESTS: Darnay Hoffman, Jeralyn Merritt

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ZAHN: On the investigative EDGE tonight, the murder of JonBenet Ramsey. The case just got a bit stranger. Today John and Patsy Ramsey released the results of their private lie-detector tests, and according to the results, they're innocent.

(BEGIN VIDEO CLIP - May 24, 2000)

PATSY RAMSEY: What was I thinking? I had JonBenet's face in my mind from the moment I went into that room. And I just kept saying, "This is for you, honey, because we're going to find out who did this. And whatever I have to do, I will do."

JOHN RAMSEY: We want the killer of our daughter found. The only thing we know to do now is to appeal to the public and say, "Look, we've done everything we can that we know we can do. You need to realize there is a killer of children that walks among us. It's not Patsy, and it's not I. Let's get on with finding the killer." That is our single and only objective in doing any of this.

ZAHN: Will the new twist in this murder case help find the killer of the young beauty queen or add to the suspicion surrounding her parents?

Joining me from Denver, defense attorney Jeralyn Merritt. And here in New York with me, attorney Darnay Hoffman.

Good to see the two of you back.

JERALYN MERRITT, ATTORNEY: Hi.

ZAHN: All right, Jeralyn, the Ramseys made it quite clear what they set out to do today, and that was to convince the public that there was a killer loose, the killer of their daughter. Did they succeed?

MERRITT: Well, I think they certainly did to some extent. Certainly, they helped move the needle back to "Who committed this crime?" as opposed to "The Ramseys did it." The problem is, if the Ramseys didn't do it, then there is a killer loose. The police have focused on the Ramseys to the exclusion of other people since the beginning of the investigation. And the police's reaction yesterday, saying that they weren't going to put any weight on the lie-detector tests before they even knew who conducted them, gives you an indication that the police aren't really interested in finding this child's killer.

ZAHN: Do you believe that, Darnay?

DARNAY HOFFMAN, ATTORNEY: Yes, I do. However, I think there's a problem with today's press conference, which is I think it's come too late in the case. I think that the Ramseys are very much like the Clintons, and I would say that I think that most people, whether this is good or bad, have made up their mind with respect to this case. And so I don't know how many people actually changed their minds with respect to what was going on today.

There's no question that I think the Ramseys don't face any legal down side from this. I don't think they'll ever be prosecuted. And consequently, I don't see how they can lose in a case like this. However, I do feel that the Ramseys still do not give the impression of being parents that are grieving.

ZAHN: I thought one of the more interesting parts of the news conference today was when Lyn Wood, the Ramseys' attorney, had this to say about if the polygraph test had come back negative, he would not have shared the results with the public. Here's what he had to say.

(BEGIN VIDEO CLIP)

LYN WOOD, RAMSEY ATTORNEY: If they had failed the lie-detector test, would you not agree there would have been a demand by the public to charge them because of the cry of the public and the media would be "Guilty!" Shouldn't we, now that they've passed the test, from the foremost polygraph examiners in the country, be equally fair and say that the results show innocence?

ZAHN: So Jeralyn, the question I have for you -- would there have been a different result if the Boulder DA had administered this test or the police department locally or the FBI, along with the Boulder police department?

MERRITT: I don't think there would have been a different result in terms of whether the Ramseys would have passed or failed, although that clearly is determined by the skill of the examiner and the phraseology used in the questions. But I think that -- the Boulder police clearly should to review the examination results, to view the videotapes and the audiotapes that these tests were conducted under and to look at Mr. Baxter's (ph) analysis of the findings.

I don't see how it hurts them, and these are recognized experts in the field, very prominent. And if the Boulder police are interested in finding the killer, what harm could it do? And I think the public deserves to know that the police are going to continue to investigate a crime where the parents have been excluded by a polygraph, even though it's not admissible in court.

ZAHN: Well, let me ask you this, Darnay, because you no doubt know there are people out there suggesting that because the Ramseys set this up and this was not done with the FBI that perhaps the results are compromised.

HOFFMAN: They might be, but I do have to say I agree with Jeralyn with one respect. Already $2 million of taxpayers' money has been spent on investigating this case. The Ramseys have gone to a good deal of their own expense. This is basically a free ride for the police. It certainly isn't going to hurt them to look at these results. And I do think they should treat the experts in question a bit more respectfully than just simply dismissing the results because they were brought into the case by the Ramseys. I think that part of the problem in this case is that the police have kept out people who are really highly qualified to help with respect to some of the forensic evidence.

ZAHN: Are you bothered by the fact that the Ramseys did not take urine tests, which is so often the case with these tests?

HOFFMAN: See, I haven't seen the protocol. However, if I had been the Ramseys, I would have wanted to at least eliminate that as a question mark and have complied in areas where you know there's going to be criticism if you don't, in fact, go along with established protocol.

ZAHN: Why did they refuse...

MERRITT: But that's...

ZAHN: ... to do that, Jeralyn? And does that make them look bad?

MERRITT: No, it doesn't. And the polygraph expert today fully explained this issue, and he said there is no known drug that would have affected the polygraph results because of the way the tests were conducted and because the questions that were asked, between the pre-test and the test, were questions that were designed to elicit an emotional response, and you couldn't possibly fake it both ways. And there is no drug that can suppress an emotional reaction at will and then show one at will to a different question. So a drug would not have made a difference.

ZAHN: Of course, the -- the allegation is -- and of course, Lord knows, millions of people in America are on Prozac, but that's what the allegation is, that both the Ramseys are on Prozac.

HOFFMAN: Well, the point is, I thought the Ramseys did a very good job of revealing the fact that there had been inconclusive results, which I think was absolutely proper. And it's just a shame that they left this door open, so to speak, so that people who, quite frankly, want to question the results of this exam can do it by simply challenging the protocol, particularly with respect to the urinalysis.

There may be a lot of indications that drugs cannot change polygraph readings or whatever, but at the same time, why leave this open? They went to a great deal of expense to do it, and they -- they know that they have to basically try harder than almost any other suspect in a case like this because there's so much negative publicity around the case.

(CROSSTALK)

MERRITT: Paula, the FBI doesn't even give a drug test before it does a polygraph exam. And Lyn Wood today said that he asked the FBI if that's their usual protocol. They said no. The idea of a drug test was strictly that of the Boulder police, and it is not warranted.

ZAHN: Very quickly, in closing, Darnay...

HOFFMAN: Yes?

ZAHN: ... what was the -- how critical is this inconclusive test? What, five tests were administered and...

HOFFMAN: I don't think it's...

ZAHN: ... one of the five came back inconclusive?

HOFFMAN: ... critical because -- but what's interesting is that you notice that whenever Patsy submits to tests, like handwriting and whatever, she has to do it more than once, apparently. She's never been able to cleanly take either a handwriting test or a polygraph and not have to do it more than once.

ZAHN: Does that make you less likely to buy the -- the results of the polygraph...

HOFFMAN: It's just simply...

ZAHN: ... test today?

HOFFMAN: She seems to have a problem with this. I don't know what it is.

ZAHN: All right, Jeralyn Merritt, Darnay, thank you both for coming by tonight- -

MERRITT: Sure.

ZAHN: ... with your perspectives.

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  Darnay reviews PMPT
Posted by: jameson245 - 02-27-2017, 06:53 PM - Forum: Darnay Hoffman - No Replies

BOOK REVIEW:

PERFECT MURDER, PERFECT TOWN,
by
Lawrence Schiller
Harper Collins, 1999

In journalist Janet Malcolm's book on the lawsuit of convicted murderer Jeffrey MacDonald against true-crime writer Joe McGinnis -- who was the author of FATAL VISION, which was a book about MacDonald's brutal murder of his wife and children -- she begins her story with an opening chapter that should be required reading of every police department and prosecutors' office in America. If Alex Hunter and the Boulder police had read the first chapter of Janet Malcolm's "The Journalist and the Murderer" (Vintage, 1990) before they had ever talked to a newspaper reporter or a broadcast journalist, they might have spared themselves the self-inflicted wounds revealed in the publication of Lawrence Schiller's true crime masterpiece, "Perfect Murder, Perfect Town."

Janet Malcolm's insights into the relationship between journalist and subject are quite remarkable for anyone following the media's coverage of the JonBenét Ramsey case. She begins her book with probably the most revealing examination of the uneasy, and often treacherous, moral tension that exists between a journalist and his subject. Her observations make for instructive reading and should be studied carefully by anyone about to grant a media interview:
Quote:
"Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible. He is a kind of confidence man, preying on people's vanity, ignorance, or loneliness, gaining their trust and betraying them without remorse. Like the credulous widow who wakes up one day to find the charming young man and all her savings gone, so the consenting subject of a piece of nonfiction writing learns--when the article or book appears--HIS hard lesson. Journalists justify their treachery in various ways according to their temperaments. The more pompous talk about freedom of speech and "the public's right to know"; the least talented talk about Art; the seemliest murmur about earning a living.
"The catastrophe suffered by the subject is no simple matter of an unflattering likeness or a misrepresentation of his views; what pains him, what rankles and sometimes drives him to extremes of vengefulness, is the deception that has been practiced on him. On reading the article or book in question, he has to face the fact that the journalist--who seemed so friendly and sympathetic, so keen to understand him fully, so remarkably attuned to his vision of things--never had the slightest intention of collaborating with him on his story but always intended to write a story of his own. The disparity between what seems to be the intention of an interview as it is taking place and what it actually turns out to have been in aid of always comes as a shock to the subject -- while the reader of a work of journalism can only imagine how the writer got the subject to make such a spectacle of himself."
So there you have it: The "secret" of great journalism. It seems the "secret" lies in something known as the"art of betrayal." If you follow Malcolm's analysis to it's logical conclusion, you are left with the realization that the greater the work of journalism, the greater the act of betrayal. To become a great journalist means, in effect, that you must first become a "Great Betrayer."

Which brings us to Lawrence Schiller and his book about the JonBenét Ramsey case: "Perfect Murder, Perfect Town." Like Bob Woodward in his book "Veil", or Joe McGinniss in "Fatal Vision," Schiller dons the mantle of "The Great Betrayer."And what a job "The Great Betrayer" has done -- made all the more remarkable by the fact that nearly everyone Schiller interviewed in Boulder already knew about Schiller's "Great Betrayal" in his earlier true crime masterpiece on the O.J. Simpson case, "American Tragedy." And yet, like all great journalists, Schiller still managed to get his subjects, against what may have been their better judgment, to spill their guts with revelations about the JonBenét Ramsey case that are beginning to send shock waves throughout Colorado.

Now don't get me wrong. What Schiller does in writing "Perfect Murder, Perfect Town," he does in the hallowed tradition of great reporting. He has operated strictly within the bounds of ethical journalism. And make no mistake about it, Schiller is every bit as great a reporter as Bob Woodward, or Edward R. Morrow. His book is an exciting, brilliantly written masterpiece of journalistic "betrayal." How Schiller is able to get so many respected law enforcement figures in Boulder to undress themselves in public is worthy of consideration by the Pulitzer Prize nominating committee. Watching Alex Hunter and John Eller go at it has all the fascination of seeing scorpions stinging themselves in a bottle.

The facts of the JonBenét Ramsey case are well known to most people, therefore, summarizing Schiller's book for the reader would be a monumental presumption on the part of any reviewer. There are, quite literally, stunning revelations on nearly every page, e.g., the Halloween party where a Boulder lawyer came dressed as the dead JonBenét, or John Andrew Ramsey's semen-stained bedding hidden in a suitcase at the crime scene, to name just two. Suffice it to say that this is a big, ugly book, about an even bigger, ugly crime. "Perfect Murder, Perfect Town," like the book "A Civil Action," deserves to spend at least two years on the New York Times bestseller list. Anyone who appreciates true crime journalism in the great tradition of Norman Mailer and Truman Capote, who doesn't read "Perfect Murder, Perfect Town", is an even bigger jackass than the people in Boulder who made this masterpiece possible by foolishly agreeing to talk to Schiller in the first place.
DARNAY HOFFMAN

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  11/23/98 Letter to Owens
Posted by: jameson245 - 02-27-2017, 06:26 PM - Forum: Darnay Hoffman - No Replies

Letter to Colorado Governor Elect Bill Owens

From New York Attorney Darnay Hoffman

November 23, 1998

Dear Governor-Elect Owens:

The time has come for you to consider making the removal of Alex Hunter as prosecutor of the JonBenét Ramsey case your first official act as the Governor of Colorado.

On August 6, 1998 Boulder detective Steve Thomas resigned from the JonBenét Ramsey case after spending nearly two years as one of its most important investigators.

Detective Thomas' letter is a damning indictment of the District Attorney's role in the case. If you haven't read this letter already, I am enclosing a copy of it for you.

Among other things, Det. Thomas has charged that "The significant opinions of national experts were casually dismissed or ignored by the district attorney's office, even experienced FBI were waved aside."

Detective Thomas then goes on to state that "There is evidence that was critical to the investigation, that to this day has never been collected...Not to mention evidence which still sits today, untested in the laboratory..."

And most disturbing of all, Det. Thomas offers the opinion that "I believe the district attorney's office is thoroughly COMPROMISED.'

What is going on here?

Detective Steve Thomas is not the only person complaining about Alex Hunter's handling of the JonBenét Ramsey case. Boulder residents Fleet and Priscilla White, former Ramsey friend and photographer Judith Phillips, and Bill McReynolds have all called for the appointment of a special prosecutor. Denver Post columnist Chuck Green and and radio talk-show host Peter Boyles have been highly critical of Alex Hunter's performance as well.

It has been almost two years since the death of JonBenét Ramsey.

Isn't it time for the chief law enforcement officer of Colorado, namely the governor-elect, to begin the process of restoring integrity to the criminal justice system -- a system that has been corrupted by a weak and ineffectual district attorney and a governor whose lack of character in betraying his wife and family is matched only by his political cynicism in allowing his state to become the judicial laughing stock of America.

Enough is enough.

Very truly yours,

Darnay Hoffman, Esq.

enc.

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  12/9/97 case dismissed
Posted by: jameson245 - 02-27-2017, 06:25 PM - Forum: Darnay Hoffman - No Replies

DISTRICT COURT, COUNTY OF BOULDER, STATE OF COLORADO

Case No. 97 CV 1732 Div. 2

MEMORANDUM BRIEF IN SUPPORT OF MOTION TO DISMISS

DARNAY HOFFMAN, Plaintiff,

v.

ALEXANDER M. HUNTER, as District Attorney for the 20th Judicial District of the State of Colorado, Defendant.

Alexander M. Hunter, District Attorney For The Twentieth Judicial District of Colorado, submits this memorandum brief in support of his motion to dismiss the complaint without a hearing.

BACKGROUND OF THIS ACTION

Plaintiff (Hoffman) filed a complaint and supporting affidavit for relief under #16-5-209, C.R.S. in connection with the ongoing investigation into the murder of JonBenet Ramsey. This statute provides:

"The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with him alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before him and explain his refusal. If after a hearing the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, he may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so..."

#16-5-209, C.R.S. (emphasis added).

Hoffman is a New York attorney appearing here pro se, apparently as a distant but curious observer. He alleges no personal connection to either the Twentieth Judicial District or to the victim, nor does he allege in any other way an injury in fact to a legally protected interest.[1] He seeks a public hearing at which the District Attorney would be required to "explain his refusal to charge" a particular person for the murder of JonBenet Ramsey. He also seeks an order directing the District Attorney to file charges or an order appointing a special prosecutor. His submissions demonstrate that since June he has felt entitled to discovery of the entire police file on the investigation, which provides an indication of the extreme breadth which he contemplates for the procedures he seeks and the extreme extent to which he would like to involve himself and the court in this criminal investigation. [2] (Hoffman affidavit, Exhibit A) Hoffman acknowledges in his allegations that "the District Attorney claims that he is waiting for the police to make a formal presentation of all the evidence before he will charge anyone with a crime in the Ramsey homicide." (Complaint, Paragraph 22) He also supports his complaint with letters from the District Attorney's office to him. (Hoffman Affidavit, Exhibit B) The letter dated July 2, 1997, stated that the investigation was ongoing and questioned Hoffman's standing under #16-5-209. the letter dated October 10, 1997, advised Hoffman of the statement of Boulder Police Chief Koby, at his then recent press conference, in which he unequivocally "stat[ed] that his department has not yet referred this case to our office for any arrest and prosecution and that it will be some time before the investigation has progressed far enough to consider such a referral."

Hoffman's pleadings in this regard make relief unavailable to him because the statutory remedy only becomes possible after there has been an actual refusal to prosecute. Since the investigation is ongoing and has not been referred to the District Attorney, there has been no "refusal" under the statute.

In an effort to overcome this fatal deficiency, Hoffman alleges, based on "information and belief" and based on references to newspaper and magazine articles, that (1) the police department has "been prepared to arrest one, or both, of the Ramseys since early this spring;" [3] (2) that the District Attorney "has warned the police that he will not charge the Ramseys with a crime should they be arrested;"[4] and (3) that the District Attorney has improperly handled and controlled the investigation, blocking prosecution. (Complaint at Paragraphs 19-36) this effort to suggest that the District Attorney has in effect refused to prosecute is supported only by unsubstantiated and speculative hearsay, to which Hoffman often tries to give credibility by attaching the label "upon information and belief." [5]

ARGUMENT

A. Summary

This Court must dismiss this action without a hearing. First, there is no allegation of, and in fact there has not been, a refusal to prosecute. The police department has not yet completed its investigation or made a referral and recommendation upon which the District Attorney could apply his discretion in making a decision whether to prosecute. Because there has been no refusal to prosecute by the District Attorney, there can be no proper basis for an action under #16-5-209. Second, the absence of any prosecution is due to the absence of a completed investigation, and for that reason alone cannot be deemed arbitrary or capricious and without reasonable excuse. Third, Hoffman's use of #16-5-209 is premature, so any claim pursuant to this statute is not ripe. Fourth, Hoffman's "affidavit" is insufficient as a matter of law because it is based on "information and belief" and incompetent second and third hand hearsay, rather than on personal knowledge, so that it does not satisfy what is required under #16-5-209. Fifth, Hoffman lacks any connection to this jurisdiction or to this case and he has not suffered any injury in fact to a legally protected right; therefore, he lacks standing to bring this action. Any decision to the contrary would be an undue interference by Hoffman through the Court with the executive branch in an ongoing police investigation in violation of separation of powers.[6] The threshold issue is whether Hoffman's complaint and "affidavit" allege sufficient facts to justify this Court in requiring the District Attorney to appear in court to explain his refusal to prosecute. This statute uses the permissive "may" in authorizing the court to use its discretion in deciding whether to require the prosecutor to appear, so that the Court can refuse to hold a hearing even upon submission of a complete affidavit properly alleging a refusal to prosecute. More significantly, the statute only gives the Court the discretion to require the prosecutor to appear upon filing of an affidavit which contains sufficient sworn facts that the prosecutor has unjustifiably refused to prosecute.[7] Hoffman has not met the threshold requirements under the statute. Hoffman's complaint and "affidavit" are insufficient on their face and do not state a claim upon which this limited statutory relief can be granted.

B. There Has Been No Refusal To Prosecute; As a Result, There is No Basis for a Claim Under #16-5-209 and Nothing for the Court to Review.

Section 16-5-209 provides for limited judicial review only upon the filing of an affidavit alleging an "unjustified refusal" to prosecute. Any hearing deemed necessary is limited to requiring "the prosecuting attorney to appear...and explain his refusal." Relief is limited to when the Court finds that the "refusal" was arbitrary or capricious and without reasonable excuse. The terms of this statute require a refusal to prosecute for an action under #16-5-209 to be possible. Because there has been no refusal to prosecute, there is no basis for relief under this statute. Hoffman's complaint and "affidavit" are insufficient as a basis for review by this Court under #16-5-209. Hoffman's pleadings and supporting documents contain the pronouncements of the District Attorney and the Chief of Police that the police investigation is not yet completed and that the police have not sent the results to prosecute at all. Hoffman chooses not to believe those statements on the ongoing status of the investigation. His personal and skeptical speculation is not sufficient to meet the threshold requirement for relief under this statute. The District Attorney submits to the Court the affidavit of the Chief of Police who is responsible for the Ramsey investigation. He states that this investigation is continuing; that the investigation has not been referred to the district Attorney for a decision on whether to file charges; that the District Attorney has not refused to file charges against anyone; that the District Attorney will not be in a position to make a charging decision until Koby determines that the investigation is completed and it has not progressed to the point where a referral can be considered; and that the District Attorney has never made any representations to anyone in the police department of what his decision might be if the investigation should be submitted to his office for review. Chief Koby's affidavit is supported here by the affidavits of the three legal advisors to the Boulder Police Department who are familiar with the investigation and with its status. They also state that "[t]he investigation has not progressed to the point where the investigation should be referred or submitted to the District Attorney for the filing of charges, and, the investigation has not been so referred or submitted" and that "the District Attorney has not refused to prosecute any person for the murder of JonBenet Ramsey." They also confirm that "the District Attorney has not made any representations to the police department as to what his decision might be if this investigation is ever submitted to him for his review." In addition, the Court is provided here with the affidavit of the District Attorney. He states that he has not yet been in a position to exercise his prosecutorial discretion because he has "not yet received any recommendation, referral, or request form the Boulder Police Department to prosecute anyone for the murder of JonBenet Ramsey." The District Attorney also states that he has "not made any decision on whether to prosecute anyone for this murder..." and that he has "not refused to prosecute anyone for this crime." In Landis v. Farish, 674P. 2d 957 (Colo. 1984) the Supreme Court affirmed the District Court order dismissing a petition/affidavit filed under #16-5-209 seeking the prosecution of Nila Keltner. this petition had been dismissed after "the district attorney advised the court that the investigation of Nila Keltner was not concluded and would be continued." [8] Even though the petition alleged the commission of a crime, any decision not to prosecute under these circumstances was not arbitrary or capricious and without reasonable excuse, so it was proper to dismiss the action.

Landis, 674 P. 2d at 959.

In Sandoval v. Farish, 675 P. 2d 300 (Colo. 1984) the Supreme Court also affirmed the trial court's dismissal of a complaint under #16-5-209. There the plaintiff had complained to the district attorney that a county commissioner has stolen his cattle. He renewed this complaint a year and a half later. The district attorney then ordered an investigation and after the investigation was completed decided not to prosecute. Sandoval, 475 P. 2d at 302. The fact that the refusal to prosecute came after the investigation was completed allowed for full review of the law and the evidence and was significant to the holding that the refusal was arbitrary or capricious. Sandoval, 675 P. 2d at 303.

Because the Boulder Police Department is still conducting its investigation of this crime, the District Attorney has not refused to prosecute. Any action under #16-5-209 is premature and not yet ripe. In the absence of a completed investigation and an actual refusal to prosecute, no justiciable claim exists under the specific terms of #16-5-209. In addition, it is necessarily reasonable for the District Attorney not to prosecute a case before the police have completed their investigation and before they have referred it to him; therefore, any lack of prosecution at this time under these circumstances cannot be arbitrary and capricious. There is no basis for judicial review under the controlling statute.

C. Hoffman's Complaint and "Affidavit" Are Insufficient For an Action Under #16-5-209.

Section 16-5-209 require submission of an affidavit as the basis for the review authorized by this statute. Hoffman's effort to satisfy this jurisdictional requirement is insufficient. Hoffman supports his claim with his own "affidavit," much of which is either expressly or in fact based "on information and belief" rather than first hand knowledge. Hoffman relies on quotations from third parties, many of whom are unidentified, from newspaper and magazine articles. The Colorado Supreme Court has held that a case supported in such an unsubstantiated way failed to meet the requirements of #16-5-209.

Tooley v. District Court, 549 P. 2d 772 (Colo. 1976). In Tooley, "The petition [under #16-5-209] was supported by an affidavit and various newspaper articles." The Court found that "the petition and the affidavit,...,containedallegations which largely were unsubstantiated and were based solely upon information and belief. The petitions and the affidavit were insufficient." Tooley, 549 P. 2d at 774. Hoffman's affidavit is equally insufficient.

The statutory requirement of an affidavit is not a mere formality, satisfied by labeling a document as an "affidavit." As shown by the Supreme Court in Tooley, "information and belief" is insufficient for the affidavit required for this statutory procedure. Yet most of the allegations in Hoffman's "affidavit" are either explicitly or in fact based only on information and belief from second and third hand sources, many of whom are unidentified, rather than on personal knowledge and belief. As shown above, this particularly true with regard to the basis for his speculation that the District Attorney has constructively refused to prosecute. Such speculation is insufficient to provide this Court with jurisdiction under #16-5-209.

A sufficient affidavit is a jurisdictional requirement for judicial review under this statute. The affidavit serves to insure that the statute is only applied under appropriate and limited circumstances. The Supreme Court has said, "' The central feature of an affidavit is its assurances, pursuant to oath, that the contents of a subscribed document are, to the subscriber's personal knowledge or belief, true,' [citation omitted] As a consequence, the omission of this pledge of personal knowledge and understanding indicates the affidavit has failed to achieve its purpose."

Loonan v. Woodley, 882 P. 2d 1380, 1385 (Colo. 1994) [9].

C.R.C.P. 56(e) requires, in the context of summary judgment, that an affidavit "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Tooley and Loonan show that affidavits required by statute must meet the same requirements in order to provide the necessary assurances contemplated by the legislature. In Commercial Industries Construction, Inc. v. Anderson, 683 P. 2d 378, 381 (Colo. App. 1984), the Court held under C.R.C.P. 56, that the affidavit "based on information and belief, not on personal knowledge" was "speculation and not competent to put into issue the question" at hand.

See, also, People v. Hernandez and Associates, Inc., 736 P. 2d 1238, 1240 (Colo. App. 1986) ("Thus, affidavits based upon inadmissible hearsay are insufficient to support summary judgment. [citations omitted] Moreover, an affidavit based not upon the affiant's personal knowledge but merely upon information and belief is speculation, and is insufficient to support summary judgment,"); Capitran, Inc. v. Great Western Bank, 872 P. 2d 1370, 1376 (Colo. App. 1994) (the threshold for satisfying the personal knowledge requirement requires "some evidence that the witness has personal knowledge of the event" for the evidence in the affidavit to be competent, which was satisfied there because the affiant was a party to the agreements at issue or was familiar with the disbursement of funds under those agreements, and "neither affidavit was submitted upon 'information and belief'."); Commercial Industrial Construction, Inc. v. Anderson, 683 P. 2d 378, 381 (Colo. App. 1984) ("...this affidavit was based on information and belief, not on personal knowledge...Therefore, this statement is speculation and not competent to put in issue the question" underlying the pending summary judgment motion.) Hoffman's affidavit is likewise not competent to put in issue his claim for review under #16-5-209. His knowledge about this investigation is entirely through second and third hand information, not through personal knowledge. He explicitly relies on "information and belief" rather than persona knowledge. He also explicitly relies on materials published by others; thus his own speculation is based on the speculation of others, for neither he nor his sources have had direct involvement in this complicated investigation. To the extent those authors rely on quotations of people alleged to be "close to the investigation," those people are unidentified.

Such pleadings are insufficient and incomptent basis for the relief he seeks. The insufficiency of Hoffman's pleadings is apparent under the clear language of #16-5-209. His effort to go beyond that clear languagae would place the court in conflict with Article III of the Colorado Constitution, which "prohibits any branch of government from assuming the powers of another branch." Wimberly v. Ettenberg, 570 P. 2d 535, 538 (Colo. 1977). For the Court to order a hearing on the basis of such pleadings would be an improper intrusion into the executive discretioon of the District Attorney and of the police, who are responsible for the investigation of crime and the determination of when to prosecute. The Supreme Court has recognized the broad nature of prosecutorial discretion, stating, "The Colorado Constitution establishes the office of district attorney and vests in the office the right to file an information on behalf of the People of the State of Colorado and the discretion to determine the charges that will be files. [citations omitted] The decision to charge 'is the heart of the prosecution function.'" Gansz v. People, 888 P. 2d 256, 257-598 (Colo. 1995) (holding that the victim of a crime does not have a right to be heard at a hearing on a motion to dismiss criminal charges and does not have standing contest a decision to dismiss charges under Article II, section 16a of the Constitution and under #24-4.1-302.5, C.R.S.) The progress of a criminal investigation and the determination of the appropriate time to make a charging decision are too complex and too sensitive for public examination in court, particularly on a premature basis. [10] The Supreme Court explained why clear and convincing evidence is required for a request for a special prosecutor under #16-5-209, stating that "[s]uch interference with the normal operations of criminal investigations [] based solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons seeking to have other persons prosecuted."

Tooley v. District Court, 549 P. 2d 772, 774 (Colo. 1976), quoting Inmates of Attica Correctional Facility v. Rockefeller, 477 F. 2d 375 (2d Cir. 1973). That risk of abuse, as well as risk to the integrity of the investigation itself, are increased many fold if a court hearing is ordered based on pleadings such as those filed by Hoffman before the investigation has been completed.

Inmates of Attica, which our Supreme Court cited favorably, demonstrates that #16-5-209 is an exception to the common law, which must, therefore, be construed narrowly. The Second Circuit quoted the U.S. Supreme Court for the proposition that "[t]he Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution [citations omitted] ... in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution of another." Inmates of Attica, 477 F. 2d at 378, quoting Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S. Ct. 1146, 1149 (1973).

The Second Circuit did not rest its decision on mere lack of standing, but held that a class action by prison inmates to require the U.S. Attorney to investigate and prosecute personas alleged to have committed crimes failed to state a claim because it was so contrary to "the normal assumption of executive discretion." Inmates of Attica, 477 F.2d at 380. The Court emphasized "the manifold imponderables which enter into the persecutor's decisions to prosecute or not to prosecute [which] make the choice not readily amenable to judicial supervision." Id. The Court discussed several difficult questions in the investigation, arrest, and prosecution decisions, which "engender serious doubt as to the judiciary's capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution," one of which was "[a]t what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive." Id. The Second Circuit had even less trouble affirming the dismissal of a similar claim to compel state officials to prosecute for state criminal violations because "New York law reposes in its prosecutors a discretion to decide whether or not to prosecute in a given case, which is not subject to review in state court." Inmates of Attica, 477 F. 2d at 382.

These constitutional principles of prosecutorial discretion under the doctrine of separation of powers raise serious questions about the constitutionality of #16-5-209. They need not be reached here for the simple reason that those same principles preclude Hoffman's effort to use the statute so far beyond its own terms. The statute cannot be used to involve the court in what is otherwise a matter delegated solely to the executive based on an "affidavit" such as his, nor can it be used until there has in fact been a refusal to prosecute. Because the investigation is continuing and there has been no refusal to prosecute, his complaint and "affidavit" fail to state a claim.

D. Hoffman Lacks Standing

The inquiry for standing is "whether the plaintiff has suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions." Wimberly, 570 P. 2d at 539.

In the absence of such standing, "the case must be dismissed." Id. The Supreme Court explained, in terms particularly appropriate here, that standing serves to "prohibit any branch of government from assuming the powers of another branch. Courts cannot, under the pretense of an actual case, assume powers vested in either the executive or the legislative branches of government" Wimberly, 570 P 2d at 538. The Court explained the importance of standing as follows:

This power of judicial determination is delicate in character, one to be exercised with caution and care, for it may result in disapproval of acts of the legislative department or of actions of the executive department, both co-ordinate branches of government. This care, this caution has been proverbially observed by the courts, lest in their zeal to prevent what they deem unjust, they exceed their judicial authority, assert an unwarranted superiority over their co-ordinate governmental branches and invade the fields of policy preserved to the legislative arm or the realm of administrative discretion lodged in the executive branch. Obviously such determination day not be had at the suit of any and all members of the public or in an ex parte proceeding. It can be secured only at the suit of one directly and not remotely interested.

Id., quoting Ex-Dell-O Corporation v. City of Chicago, 115 F. 2d 627 (7th Cir 1940). Hoffman has not suffered injury in fact to a legally protected interest as contemplated by #16-5-109. (sic) The statute's requirement of an affidavit demonstrates that the legislature expected that only people with firsthand knowledge of both the commission of a crime and the refusal to prosecute would be entitled to bring such an action. Hoffman has no first hand knowledge about the investigation or about the actions of the District Attorney. He has no direct interest in this case or in this judicial district. The legislature did not have people such as Hoffman in mind when it created the remedy through this statute.

Common sense leads to the same conclusion. Hoffman is a New York lawyer who is not licensed to practice law in Colorado. He has no client at all, much less one with a recognizable interest in this case. If Hoffman has standing, any person in the nation and, indeed, in the world, would have standing based solely on having read press reports about the case. If standing under this statute is a broad as Hoffman asserts, anyone and everyone could demand the entire file on any ongoing police investigation and could tie up police, prosecutors, and the courts in publicly addressing and disclosing the details of those investigations while debating whether prosecution is yet appropriate. The legislature did not intend to create nation-wide and world-wide access to the Colorado courts for such involvement in criminal investigations when it enacted #16-5-209.

As shown above, it is generally the law that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Inmates of Attica, 477 F.2d at 378, quoting Linda R.S., 410 U.S. at 619, 93 S. Ct. at 1149. There is nothing in #16-5-209 which suggests that the legislature went against this established law to the tremendous extent necessary to create an interest for Hoffman which gives him standing here. Quite simply, Hoffman has no nexus to the murder of JonBenet Ramsey and has not suffered a legally recognized injury in fact, so he is not entitled to pursue his private interests in this investigation in court. Hoffman's simplistic assertion to the contrary would require a construction of the statute which would be in violation of separation of powers, rendering it unconstitutional under Article III of the Colorado Constitution.

CONCLUSION

Hoffman has failed to state a claim for relief under #16-5-209 and he lacks standing to invoke the judicial process. The Court must, therefore, dismiss this action without a hearing.

Dated: December 9, 1997

Respectfully Submitted,
ALEXANDER M. HUNTER, DISTRICT ATTY.
TWENTIETH JUDICIAL DISTRICT

By: Signature
William F. Nagel, No. 10,625
Appellate Chief Deputy District Attorney
P.O. Box 471
Boulder, CO 80306
(303) 441-3700

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