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  5/24/2000 on polygraphs
Posted by: jameson245 - 02-27-2017, 11:56 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, 11:53 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, 11:26 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, 11:25 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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  5/24/97 Miller FAX
Posted by: jameson245 - 02-27-2017, 11:23 PM - Forum: Darnay Hoffman - Replies (4)

Darney Hoffman
JONBENET RAMSEY HOMICIDE ANALYSIS

From Letter to District Attorney Alex Hunter
May 24, 1997


1) Patsy’s possible participation in this crime is the single most significant clue to this murder.

2) Although research shows that fathers are more likely to kill members of their families (over 80% of the time), Patsy Ramsey fits the profile of older women who kill family members. Remember: until forty years ago most intrafamilial homicides were caused by women.

3) Older women are most likely to kill their younger daughters. Frequently, it is the prospect of divorce or impending single parenthood, coupled with suicidal depression that often leads these mother's to think and respond anomically (i.e., "amorally"), which means they grow to believe that killing their children will actually "benefit" them. (Remember Patsy Ramsey's Susan Smith-like remark during her first CNN interview on January 1, 1997 when she referred to JonBenét as perhaps being "better off" not living old enough to become a cancer victim, or to experience the other heartaches of adulthood? This is classic "anomic" thinking by a parent who has just murdered their child).

4) The events in Patsy's life just prior to the day of the murder are highly significant: i.e., an isolated and comparatively unhappy, depressed older woman, about to turn forty; whose sixteen year marriage to an older man was showing signs of stress; whose body had begun to betray her former good looks with a sex organ cancer; whose beautiful and talented daughter began serving as a bittersweet reminder of lost youth, and whose unhappiness and disappointment in her gilded cage existence a thousand miles from her family and hometown of Atlanta, Georgia are clear indicators that Patsy may have been harboring suicidally depressed thoughts.

5) The need for Patsy to establish some kind of control in her life made her relationship with her daughter paramount. After all, Patsy had already lost control over where she lived, her body, her marriage to John, and the general direction of her life. Controlling JonBenét was the single most important "safety valve" in Patsy's life.

6) Patsy began losing control over JonBenét as her daughter reached six years old. At that age, children are no longer interested in satisfying their parents emotional needs to the exclusion of their own. This is the age when many children become openly resistant to continuing with their ballet, or ice skating, or piano lessons which have often been "forced" on them by their overly ambitious parents. It's an age when they just want to be "kids."

7) JonBenét displayed the usual degree of resistance, even demonstrating it with bedwetting.

8) Patsy began sensing her daughter's increasing independence, but she was too emotionally vulnerable and needy to completely accept it.

9) JonBenét’s bedwetting just became another in a series of frustrations and disappointments, and, consequently, took on greater symbolic importance than it normally would have were Patsy not sensing that her own life was "cascading" out of control.

10) Losing control of her daughter might have presented an intolerable threat to Patsy's psychological survival and may have even contributed to suicidal thinking on Patsy's part.

11) Suicidal thinking is the most common and prevalent emotional component in female homicides of family members, especially involving their younger children.

12) Although the precipitating event of the night of JonBenét’s murder remains unclear, the injury to JonBenét’s head is more constant with a parent who flew into a sudden rage, than with a parent involved in a pattern of sex abuse that resulted in an accidental homicide.

13) Patsy Ramsey's psychological profile does more to explain why she was more likely to go into a sudden rage (probably at the loss of control over JonBenét) than John Ramsey, who, by all accounts, was an absentee parent with little or no psychological investment in controlling his daughter's behavior that we know about. John had had three children by a prior marriage, and so had "been there, done that" as a parent. Sociological studies of affluent families show the husbands as assuming the role of "sole" financial support, with mothers assuming the more traditional roles as the exclusive arbiters of the children's behavioral development. While their husbands measure their success and status among their peers with wealth, these wives measure their status and success by how well they raise and control their children's behavior.

14) If Patsy Ramsey did, in fact, strike her daughter on the head with a blunt object in a blind rage, what would she have done next? Answer: What she had always done in the past, which was to go to John and have him "save" her.

15) "Saving" women like Patsy is what John Ramsey is all about. A man who made a fortune by creating a hands-on business, which he started on his kitchen table, and which he also "micro-managed," would be accustomed to playing Pygmalion to Patsy's Eliza Doolittle. As a former naval officer and airplane pilot, John Ramsey sees himself as calm and experienced in crisis management -- in fact, he prides himself in it.

16) One has only to remember how Richard Nixon engineered the Watergate cover-up (a crime he probably didn't initiate) to realize that certain personalities relish the challenge of being able to meet the demands of orchestrating a "cover-up" to "save" their subordinates, who are frequently people they feel morally superior to.

17) Since the single most important element in a parent/child homicide is the issue of CONTROL; and since the parent feels that they have lost control of their child, whether real or imagined, this would explain why the FBI claims that children between the ages of 0-2 are most often killed for uncontrolled crying and screaming ("shaken baby" syndrome), and children between the ages of 2-6 are killed for chronic bedwetting or lose of bowel control.

18) Who in the Ramsey household had the greatest "control issues" in their lives? John or Patsy?

19) The idea that John Ramsey "accidentally" killed JonBenét by strangling her in a strange sex-game ritual, or killed her to keep from being "exposed" by her threatening "to tell mommy", is the least likely of all the scenarios involving a family member being responsible for the murder. As Star Trek's Mr. Spock was so fond of saying: "It's possible, but not probable."

20) Studies show that incest victims are rarely physically hurt or killed by the molesting parent. Several of these studies show that parent pedophiles are remarkably non-violent.

21) The most likely scenario, assuming the injury sequence is one in which the head injury occurred first and the strangulation resulting from the staging occurred later, is one in which Patsy Ramsey assaulted her daughter in a fit of rage involving a "control issue" triggered by JonBenét’s chronic bedwetting, which then resulted in Patsy running to John and begging him to "save" her. John then foolishly agreed to help his wife by "staging" a horrific ritual kidnap/killing, thinking his daughter already dead from the blow to her head. Ironically, John's application of the ligature to JonBenét’s neck actually became the technical cause of JonBenét’s death in the coroner's report -- a completely unforeseen and unintended result -- thereby resulting in John's being "upgraded" from a mere accomplice after-the-fact, to the actual "murderer." When John learned what had occurred when the coroner's report was released several days later, he couldn't believe how far down into a hole he had buried himself.

22) Any theory of this crime, which involves Pasty as the "event initiator", is further borne out by the fact that the Boulder police and FBI have completely failed to drive a wedge between the two parents -- a common occurrence in solving domestic homicides (e.g., Joel Steinberg and Hedda Nussbaum). Most police clearances of domestic homicides involve a confession or eyewitness testimony by the "innocent" spouse. Neither Patsy nor John can give the other up -- even if one wanted to -- because they are now both equally culpable.

23) Psychologically, both Ramseys regard, and believe, the event to be "accidental." They are sincere in their expressions of love for their daughter and in their sorrow for her death. Like O.J. Simpson, the Ramseys don't believe "they" have killed anyone. "They" are not capable of murder. Some other "they", serving as their evil twins, or alter egos, reflexively, and defensively, created this accident and then covered it up, to prevent an uncaring world from condemning them. Why should a person's whole life be defined by a momentary loss of control -- to be branded as a murderer for all time, despite the years of good "works" and Christian deeds? Why, indeed, the Ramseys ask. They undoubtedly feel that they are suffering enough already as the result of the enormous public scrutiny and loss of reputation in the community.

They also miss their daughter terribly, suffering enormous guilt and loss, the way most parents do when their children die prematurely from disease or accidents. Parents whose children die from their negligent care of them frequently don't go to jail. Why should the Ramseys?

So, in order to move this case to the next step, your office is probably going to have to take a page out of the prosecution's book in the Joel Steinberg/Hedda Nussbaum case. You may remember that the New York City police arrived in that case only to find a comatose six-year old girl dying on the living room floor of the apartment of a multi-millionaire criminal defense attorney and his common law wife. The DA had no forensic evidence, only two adults, each capable of committing the crime.

What to do? The DA Morgenthau arrested them both (sometimes "One Degree of Separation" between suspects in separate jail cells is more potent than a ton of DNA evidence). As usually happens in these cases, after her arrest, Hedda Nussbaum, with the help of her attorney Barry Scheck, gave Joel up, something she would never have done had she not been arrested and charged with murder. The DA gambled and won. It was worth it.

The only conceivable prosecution scenario that should break this case open is a grand jury indictment of the ransom note writer, who is then arrested and jailed on first degree felony murder charges, with no possibility of bail for first degree murder in Colorado. Time to reflect while in the confines of a jail cell should do the trick.

Well, that's it. If you would like to discuss this further, I'd be happy to do so.

Good luck,
you're really going to need it.

Very truly yours,

Darnay Hoffman

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  5/24/97 analysis
Posted by: jameson245 - 02-27-2017, 11:22 PM - Forum: Darnay Hoffman - No Replies

Darney Hoffman
JONBENET RAMSEY HOMICIDE ANALYSIS

From Letter to District Attorney Alex Hunter
May 24, 1997


1) Patsy’s possible participation in this crime is the single most significant clue to this murder.

2) Although research shows that fathers are more likely to kill members of their families (over 80% of the time), Patsy Ramsey fits the profile of older women who kill family members. Remember: until forty years ago most intrafamilial homicides were caused by women.

3) Older women are most likely to kill their younger daughters. Frequently, it is the prospect of divorce or impending single parenthood, coupled with suicidal depression that often leads these mother's to think and respond anomically (i.e., "amorally"), which means they grow to believe that killing their children will actually "benefit" them. (Remember Patsy Ramsey's Susan Smith-like remark during her first CNN interview on January 1, 1997 when she referred to JonBenét as perhaps being "better off" not living old enough to become a cancer victim, or to experience the other heartaches of adulthood? This is classic "anomic" thinking by a parent who has just murdered their child).

4) The events in Patsy's life just prior to the day of the murder are highly significant: i.e., an isolated and comparatively unhappy, depressed older woman, about to turn forty; whose sixteen year marriage to an older man was showing signs of stress; whose body had begun to betray her former good looks with a sex organ cancer; whose beautiful and talented daughter began serving as a bittersweet reminder of lost youth, and whose unhappiness and disappointment in her gilded cage existence a thousand miles from her family and hometown of Atlanta, Georgia are clear indicators that Patsy may have been harboring suicidally depressed thoughts.

5) The need for Patsy to establish some kind of control in her life made her relationship with her daughter paramount. After all, Patsy had already lost control over where she lived, her body, her marriage to John, and the general direction of her life. Controlling JonBenét was the single most important "safety valve" in Patsy's life.

6) Patsy began losing control over JonBenét as her daughter reached six years old. At that age, children are no longer interested in satisfying their parents emotional needs to the exclusion of their own. This is the age when many children become openly resistant to continuing with their ballet, or ice skating, or piano lessons which have often been "forced" on them by their overly ambitious parents. It's an age when they just want to be "kids."

7) JonBenét displayed the usual degree of resistance, even demonstrating it with bedwetting.

8) Patsy began sensing her daughter's increasing independence, but she was too emotionally vulnerable and needy to completely accept it.

9) JonBenét’s bedwetting just became another in a series of frustrations and disappointments, and, consequently, took on greater symbolic importance than it normally would have were Patsy not sensing that her own life was "cascading" out of control.

10) Losing control of her daughter might have presented an intolerable threat to Patsy's psychological survival and may have even contributed to suicidal thinking on Patsy's part.

11) Suicidal thinking is the most common and prevalent emotional component in female homicides of family members, especially involving their younger children.

12) Although the precipitating event of the night of JonBenét’s murder remains unclear, the injury to JonBenét’s head is more constant with a parent who flew into a sudden rage, than with a parent involved in a pattern of sex abuse that resulted in an accidental homicide.

13) Patsy Ramsey's psychological profile does more to explain why she was more likely to go into a sudden rage (probably at the loss of control over JonBenét) than John Ramsey, who, by all accounts, was an absentee parent with little or no psychological investment in controlling his daughter's behavior that we know about. John had had three children by a prior marriage, and so had "been there, done that" as a parent. Sociological studies of affluent families show the husbands as assuming the role of "sole" financial support, with mothers assuming the more traditional roles as the exclusive arbiters of the children's behavioral development. While their husbands measure their success and status among their peers with wealth, these wives measure their status and success by how well they raise and control their children's behavior.

14) If Patsy Ramsey did, in fact, strike her daughter on the head with a blunt object in a blind rage, what would she have done next? Answer: What she had always done in the past, which was to go to John and have him "save" her.

15) "Saving" women like Patsy is what John Ramsey is all about. A man who made a fortune by creating a hands-on business, which he started on his kitchen table, and which he also "micro-managed," would be accustomed to playing Pygmalion to Patsy's Eliza Doolittle. As a former naval officer and airplane pilot, John Ramsey sees himself as calm and experienced in crisis management -- in fact, he prides himself in it.

16) One has only to remember how Richard Nixon engineered the Watergate cover-up (a crime he probably didn't initiate) to realize that certain personalities relish the challenge of being able to meet the demands of orchestrating a "cover-up" to "save" their subordinates, who are frequently people they feel morally superior to.

17) Since the single most important element in a parent/child homicide is the issue of CONTROL; and since the parent feels that they have lost control of their child, whether real or imagined, this would explain why the FBI claims that children between the ages of 0-2 are most often killed for uncontrolled crying and screaming ("shaken baby" syndrome), and children between the ages of 2-6 are killed for chronic bedwetting or lose of bowel control.

18) Who in the Ramsey household had the greatest "control issues" in their lives? John or Patsy?

19) The idea that John Ramsey "accidentally" killed JonBenét by strangling her in a strange sex-game ritual, or killed her to keep from being "exposed" by her threatening "to tell mommy", is the least likely of all the scenarios involving a family member being responsible for the murder. As Star Trek's Mr. Spock was so fond of saying: "It's possible, but not probable."

20) Studies show that incest victims are rarely physically hurt or killed by the molesting parent. Several of these studies show that parent pedophiles are remarkably non-violent.

21) The most likely scenario, assuming the injury sequence is one in which the head injury occurred first and the strangulation resulting from the staging occurred later, is one in which Patsy Ramsey assaulted her daughter in a fit of rage involving a "control issue" triggered by JonBenét’s chronic bedwetting, which then resulted in Patsy running to John and begging him to "save" her. John then foolishly agreed to help his wife by "staging" a horrific ritual kidnap/killing, thinking his daughter already dead from the blow to her head. Ironically, John's application of the ligature to JonBenét’s neck actually became the technical cause of JonBenét’s death in the coroner's report -- a completely unforeseen and unintended result -- thereby resulting in John's being "upgraded" from a mere accomplice after-the-fact, to the actual "murderer." When John learned what had occurred when the coroner's report was released several days later, he couldn't believe how far down into a hole he had buried himself.

22) Any theory of this crime, which involves Pasty as the "event initiator", is further borne out by the fact that the Boulder police and FBI have completely failed to drive a wedge between the two parents -- a common occurrence in solving domestic homicides (e.g., Joel Steinberg and Hedda Nussbaum). Most police clearances of domestic homicides involve a confession or eyewitness testimony by the "innocent" spouse. Neither Patsy nor John can give the other up -- even if one wanted to -- because they are now both equally culpable.

23) Psychologically, both Ramseys regard, and believe, the event to be "accidental." They are sincere in their expressions of love for their daughter and in their sorrow for her death. Like O.J. Simpson, the Ramseys don't believe "they" have killed anyone. "They" are not capable of murder. Some other "they", serving as their evil twins, or alter egos, reflexively, and defensively, created this accident and then covered it up, to prevent an uncaring world from condemning them. Why should a person's whole life be defined by a momentary loss of control -- to be branded as a murderer for all time, despite the years of good "works" and Christian deeds? Why, indeed, the Ramseys ask. They undoubtedly feel that they are suffering enough already as the result of the enormous public scrutiny and loss of reputation in the community.

They also miss their daughter terribly, suffering enormous guilt and loss, the way most parents do when their children die prematurely from disease or accidents. Parents whose children die from their negligent care of them frequently don't go to jail. Why should the Ramseys?

So, in order to move this case to the next step, your office is probably going to have to take a page out of the prosecution's book in the Joel Steinberg/Hedda Nussbaum case. You may remember that the New York City police arrived in that case only to find a comatose six-year old girl dying on the living room floor of the apartment of a multi-millionaire criminal defense attorney and his common law wife. The DA had no forensic evidence, only two adults, each capable of committing the crime.

What to do? The DA Morgenthau arrested them both (sometimes "One Degree of Separation" between suspects in separate jail cells is more potent than a ton of DNA evidence). As usually happens in these cases, after her arrest, Hedda Nussbaum, with the help of her attorney Barry Scheck, gave Joel up, something she would never have done had she not been arrested and charged with murder. The DA gambled and won. It was worth it.

The only conceivable prosecution scenario that should break this case open is a grand jury indictment of the ransom note writer, who is then arrested and jailed on first degree felony murder charges, with no possibility of bail for first degree murder in Colorado. Time to reflect while in the confines of a jail cell should do the trick.

Well, that's it. If you would like to discuss this further, I'd be happy to do so.

Good luck,
you're really going to need it.

Very truly yours,

Darnay Hoffman

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  3/11/97 - Lindbergh letter to DA
Posted by: jameson245 - 02-27-2017, 11:21 PM - Forum: Darnay Hoffman - No Replies

March 11, 1997

Re: The Lindbergh Kidnapping Case & JonBenet Ramsey

Dear Mr. Hunter:

I am a criminal and civil defense attorney in New York City. I recently defended "Subway Gunman" Bernhard Goetz in a civil trial in New York, and I am a former law student of Barry Scheck (Cardozo '82).

I have been following your investigation into the Ramsey case with great interest and I would like to bring certain similarities between the Lindbergh Kidnapping case and the Ramsey case to your attention:

First, and most important, every member of the Lindbergh household, with the exception of Charles and Anne, were under suspicion from the moment the police began their investigation. With what we know about infant homicides today, Lindbergh would have been a prime suspect himself. And for very good reasons:

1) When the Lindbergh baby was first discovered missing, both Anne Morrow Lindbergh, and the nursemaid Betty Gow, immediately suspected Charles Lindbergh. In fact, Betty Gow's first words to Lindbergh were "Colonel, do you have the baby? Please don't fool me!"

2) Anne Morrow Lindbergh, in her March 2, 1932 letter to her mother-in-law (a letter she prefaces with the warning that she "Better destroy after reading"), observes that "She (Betty Gow) thought C. (Charles Lindbergh) had taken the baby for a joke. I did (also), until I saw his face." (Lindbergh was never able to give police a complete account of his whereabouts on the day of the kidnapping. He mysteriously "forgot" to attend an dinner given by NYU with Lindbergh scheduled as a guest of honor, or why he arrived home "early" just prior to the time when his son was kidnapped. Lindbergh claimed, vaguely, that he "couldn't remember" the events of that day.)

3) Two months before the March 1st kidnapping, Charles Lindbergh had played a cruel practical joke on his wife, and the nursemaid, by hiding his son Charles Jr. in a closet for twenty minutes while announcing melodramatically that someone had kidnapped the baby. Lindbergh watched with silent glee at the sheer terror and panic as members of his household frantically tried to find the child. Finally, Lindbergh triumphantly produced the baby from it's hiding place.

4) Lindbergh, himself, was the one who discovered the ransom note, even though the place where he had "found" it -- on the window sill in the baby's bedroom -- had already been searched by his wife and the nursemaid.

5) Lindbergh inexplicably allowed the crime scene to become contaminated by both the press and the police by insisting they follow him around the grounds en masse, trampling all over footprints that had been left in the mud around the house. Remarkably, Lindbergh did this despite the great show he made of waiting patiently for nearly two hours for a police technician to arrive with fingerprint gear before opening the ransom note.

6) Lindbergh tried to prevent his household staff from being questioned by police or subjected to polygraphs.

7) Upon discovering his son was "kidnapped," the first person Lindbergh called before calling the police was his lawyer.

8) Lindbergh tried to divert the police investigation by bringing in outside "investigators", while insisting that the kidnapping was the work of "outsiders," i.e., professional kidnappers. (Mob boss Frank Costello was so unimpressed with this theory that he advised Lindbergh to forget about paying any ransom money because, in his opinion, the child was "already dead" and that the kidnapping had all the ear-marks of an amateur at work.)

9) Lindbergh refused to allow the FBI to investigate the case, preferring, instead, to allow the inexperienced New Jersey State Police -- headed by Col. Norman Schwartzkopf (father of "Stormin' Norman) who had no prior police experience except as a floor walker at Bambergers department store (he was politically appointed to the New Jersey State troopers) -- to handle the investigation. Schwartzkopf made a mess of the investigation (which was the general idea).

10) J. Edgar Hoover, along with some of his agents, believed that Lindbergh was lying about what he knew about the circumstances surrounding his son's kidnapping. Later on, Hoover also came to believe that Lindbergh lied about his voice identification of Hauptmann as "cemetery John." Moreover, a Bronx grand juror hearing the case asked, rather incredulously, how it was possible for Lindbergh to be certain he could identify Hauptmann 's voice from hundreds of feet away and remember it two years later when Hauptmann was finally captured as the "kidnapper." Hoover was so frustrated by Lindbergh's "stonewalling" that he encouraged Congress to pass the Federal "Lindbergh" Kidnapping law so the FBI would have jurisdiction to investigate. (Hoover was so suspicious of Lindbergh and his lying that he opened an FBI surveillance file on him which he eventually shared with Franklin Roosevelt, who suspected Lindbergh of pro-Nazi sympathies.)

11) Lindbergh refused to allow the New Jersey State Police, or anyone from law enforcement, to listen in on any phone calls he received concerning the kidnapping that might contain clues.

12) Lindbergh tried to prevent the Treasury Department from recording and "marking" any of the kidnap ransom money so that it could not be traced afterward.

13) Lindbergh let members of the underworld have copies of the kidnap ransom note, even though the police wanted to hold back giving out the unique kidnapper's "signature", which, police knew, would be a vital clue in determining whether or not future communications from the kidnapper were legitimately from him, and not from the thousands of hoaxers plaguing the case.

14) When the Lindbergh baby was eventually found in May of 1932 (two months after the kidnapping), police discovered that someone had hurriedly dumped the body into a shallow ditch within sight of the Lindbergh home. Had Lindbergh not prevented a ten mile search for his son by police bloodhounds when the child was first discovered missing, authorities would have known from the beginning that the baby had died within minutes of having been "kidnapped," and would have treated the matter as a homicide instead of as a "kidnapping." As result, Lindbergh would not have been an anxious parent hoping to effect the return of his son, but would, instead, have been the parent of a murder victim, and, therefore, unable to personally direct or control a police investigation into a homicide.

15) The initial autopsy of the Lindbergh baby was so sloppy that police could never really be sure of the cause of death. In fact, the child might have been suffocated first, and then hit on the head, in order to cover up the real cause of death. One recent theory of the kidnapping has Lindbergh repeating his "practical joke" of hiding the baby, only to have it go horribly wrong (the child suffocates and is then bashed in the head to look as if "accidentally" dropped out a window by an anxious "kidnapper" making an all too hasty get-away on an awkwardly constructed ladder used to gain entrance to the second story bedroom window.)

16) Lindbergh immediately ordered the cremation of his son without any further tests or examinations by qualified forensic pathologists (remember how "careful" Lindbergh was with respect to fingerprints on the ransom note? Was that because Lindbergh knew there would be no fingerprints?) Michael Baden, in the October 1983 Journal of the Forensic Sciences, stated: "The fractured-skull diagnosis was wrong for two reasons: there was no fracture, just a separation of the unfused skull bones which is normal in all babies, and there was no brain damage. It's the brain damage, not the fracture, that would cause death. The baby was probably smothered at the time of the kidnapping to keep him from crying out and alerting the family and the nurse who were all in nearby rooms."

17) Whoever "kidnapped" the Lindbergh baby was intimately familiar with the large, rambling Lindbergh estate home. The kidnap ladder was placed directly under the child's second story bedroom window -- remarkably, there were no ladder marks under the other windows, which means the kidnapper was incredibly "lucky" to find the right window on the first try without trial and error, or he knew the right window from some prior knowledge. The shutters to the baby's bedroom windows, moreover, were the only ones that couldn't latch closed from the inside and therefore would not need to be forcibly opened.

18) Apparently, the kidnapper was not afraid of detection. What else could explain a "kidnapping" which took place sometime between 7:30 and 9:30 PM in a house full of people and servants, fully lit, with someone quite capable of walkng in on the kidnapper at any given moment? The "kidnapper," furthermore, was not worried about the child screaming or making any noise (was that because the child would not cry if the "kidnapper" was someone it already knew?).

19) The Lindbergh family Boston terrier, Wahgoosh, was reported to be a neurotically nervous dog who barked at any strange sound or person -- that night, not a peep.

20) The Lindbergh family never stayed at their home during the weekdays, preferring, instead, to stay with Anne Morrow's parents, an hour away in Englewood New Jersey, which was closer to New York City where Charles worked during the week. The decision to remain at their home a day or two longer was made at the last minute and could only have been known by members of the immediate family and household staff. Professional kidnappers "staking out" the Lindberghs would have known from the meticulous routine kept by Charles that the family could be expected to be staying with Anne's family, and the country home where the baby was kidnapped. This was why the police insisted for over two years that the kidnapping was an "inside job." Even Hauptmann's defense attorneys argued that there was no way a Bronx carpenter could have known what the Lindberghs were doing, at the last minute, two hours away in the backwoods of New Jersey, to then rush out there and kidnap Charles Jr..

21) Police investigating the crime noted that there were no fingerprints of any kind in the baby's bedroom. None. Not even fingerprints normally associated with the baby, his mother, the nursemaid, household staff, or even Charles. One police officer remarked afterwards that it appeared to him as if someone had purposely wiped down the whole room to remove it of any fingerprints -- a task too dangerously time consuming for a stranger and would-be "kidnapper."

In short, the Lindbergh and Ramsey cases have one very important theme in common -- they are both kidnap "hoaxes" perpetrated by the parties really responsible, who must "hide in plain sight" in the hopes of throwing off the police. In the first case, involving Lindbergh, the hoax was successful; in the second, involving the Ramseys, onlly for a time. Yet, in each case, the "kidnapper" was able to successfully bring about a breakdown of normal police procedure into what should have been routine domestic homicide investigations. Instead, the police were tricked into believing the crime to be a kidnapping, instead of a murder, with devastating consequences for the destruction and contamination of potential crime scene evidence.

If you would like to consult with me further on this case I would be more than happy to speak to you. You are doing a very difficult investigation under nearly impossible circumstances. The fact that my former law professor Barry Scheck has agreed to consult with you makes me even more eager to help.

Good luck on this case.

Very truly yours,

Darnay Hoffman

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  theft from home?
Posted by: jameson245 - 02-27-2017, 10:42 PM - Forum: The House at 755 15th Street, Boulder, CO - No Replies

Quote: 1997-04-30: Patsy Ramsey Interrogation by Steve Thomas, Tom Trujillo

Patsy Ramsey Interrogation by Steve Thomas, Tom Trujillo
Also present, Pat Burke, Bryan Morgan, Pete Hoffstrom, Jon Foster
April 30, 1997 - Boulder, Colorado


ST: Did you ever report, previously I’ve been told that you have a video camcorder stolen from the home.

PR: Yeah.

ST: Was that ever reported to the police?

PR: I don’t remember whether it was or not. That was, I don’t know if it was. I mean, we discovered that about the time we were having carpet done and that’s when I came back from chemo and all that, and I don’t think it was, in the sale of things, you know, all that important. I must don’t remember. I remember we thought it was probably the carpet people, but you can’t prove it. I mean, we’ve lost so many cameras and…

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  Brett Sawyer and Lawrence Smith
Posted by: jameson245 - 02-27-2017, 10:29 PM - Forum: Names to remember - Replies (2)

Brett Allen Sawyer (Selling Photos Printed In The Globe)



Photo lab staffer, ex-cop arrested in picture leak
Inquiry not over, Sheriff says
By ALLI KRUPSKI
Camera Staff Writer
Thursday, January 16, 1997
Authorities arrested a Photo Craft Laboratories employee and a former local law enforcement officer Wednesday in connection with the sale of crime scene photos of JonBenet Ramsey to the Globe tabloid.
Officials charged Lawrence Shawn Smith, 36, a printer at the Boulder photography company, with two felonies - theft of more than $400 and tampering with physical evidence - as well as two misdemeanors - obstructing government operations and false reporting to authorities.

[Image: smith.jpg]
Lawrence Shawn Smith
[Image: sawyer.jpg]
Brett Allen Sawyer
Officials also charged Brett Allen Sawyer, 38, a former Lafayette police officer, a Boulder County sheriff's deputy in 1980-81 and a private investigator for the past 16 years, with obstructing government operations.
Investigators booked the two men at the Boulder County Justice Center on Wednesday and released them. Boulder County Sheriff George Epp announced the arrests - reported in Wednesday's Daily Camera - at a news conference Wednesday afternoon.
The department has not completed the investigation, Epp added.
"It's possible that they'll arrest (someone else) very soon," a source said.
The Globe published five of the crime-scene pictures, including photos of a garrote and a rope around one of JonBenet's wrists, on Monday. As part of an agreement reached Tuesday, the
Globe will return the photos, although they hadn't arrived Wednesday. But, under the settlement, the tabloid can publish the pictures again.
Officials shot the photographs after JonBenet's mother, Patsy, found a ransom note about 5:30 a.m. Dec. 26. Approximately eight hours later, John Ramsey, JonBenet's father, and a friend discovered the former Little Miss Colorado strangled in the basement of the family's home at 755 15th St.
The newspaper hired Sawyer to search for facts surrounding the 6-year-old beauty queen's death, officials said.
"Like many media organizations, the Globe was interested in obtaining as much information about the Ramsey murder as fast as it could," said Peter Schild, Sawyer's attorney.
Sawyer told Smith he represented the Ramseys' independent investigative team, according to the arrest report. Sawyer then obtained the photographs and provided them to the Globe in about four hours, sources said.
The 1.3 million-circulation, Boca Raton, Fla.-based tabloid paid the men about $5,500, a $5,000 bonus and $500 in fees and expenses, according to the arrest report. Smith received about $200, Epp said.
"Sawyer allegedly went to Smith for help," a source close to the investigation said. "It's just a sick situation that's ironic, too, because Sawyer's 6-year-old son is a first-grader at the same school (High Peaks/Martin Park Elementary) that JonBenet went to. Even so, it really does seem like an astonishingly low amount of money for the pictures."
Generally, magazines do not disclose the prices they pay for photos because it would betray a competitive advantage. But one source said packages of exclusive news photos could result in several magazines bidding against each other, fetching as much as $20,000.
"They really can get a lot of money for certain pictures," said another photo agent. "That's why it's just hard to believe that the Globe paid so little for these pictures because they're authentic photographs that nobody else has."
A photographer familiar with the youth pageant circuit said that if the two men sold the pictures to the Globe for $5,500, "they were nitwits." Some publications would have easily paid more than $10,000 for the coroner's photographs, he said.
If convicted of all charges, Smith could face up to 8 years in prison and more than $600,000 in fines. Sawyer's possible penalties include a maximum six-month jail sentence and a $750 fine, Epp said.
Sawyer will appear for a hearing in Boulder County Court at 9 a.m. Feb. 27. Officials have not set a court date for Smith.
"These two people were acquainted with each other before this incident occurred," Epp said.
Upon learning that the Globe would publish the pictures, Sawyer contacted Schild, the attorney said. Schild then called the Boulder County Sheriff's Department, according to arrest reports.
"Brett feels terrible about his role in this and has done everything possible to make things right," Schild said. "He suggested donating the money to a memorial charity for JonBenet, perhaps at the school she attended.
"In an interview, Brett said he believed the photos would never be printed because that's what the Globe told him," Schild said. "The Globe told him the photos were only going to be used for a review by their own coroner consultant. It is common for media to review material that might be too offensive for public consumption," Schild said.
Meanwhile, Photo Craft presi dent Roy M. McCutchen said in a statement that he has fired Smith, who had worked for the company since 1987. McCutchen described Smith as "a trusted staff member who had been producing work for the coroner's office for many years."
McCutchen also apologized to the community.
"I am in a state of shock," McCutchen said. "In the 21 years I have been the senior operating officer of Photo Craft, nothing like this has ever happened. Our systems and relationships have evolved over years and have been built on the idea that people are basically honorable."
The publication of the photos also alarmed Boulder County Coroner Dr. John Meyer. The office has worked exclusively with Photo Craft since 1990 and paid the company about $1,300 to process film in 1996, he said. And while officials do not believe other publications have acquired any of the coroner's 113 photos, the incident has prompted the office to examine its photo processing policies, Meyer said.
"We've asked the Sheriff's Department to ... offer suggestions on how we might improve our procedures," Meyer said.
Those changes might include monitoring the film developing process, officials said.
"Right now, no one watches the film after the coroner's office drops it off," a source said. "Having someone watching this whole event might help. Or the coroner might need to develop only the necessary pictures as opposed to all of the film. We just need to look at a range of options so the family doesn't have to go through pain like this again."
Staff writer Elliot Zaret contributed to this report.

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  The 1994 Christmas tour
Posted by: jameson245 - 02-27-2017, 10:21 PM - Forum: The House at 755 15th Street, Boulder, CO - Replies (2)

      Photo taken in second floor playroom

Quote: 1994-11-29: Boulder Historical Tour

The Denver Post
November 29, 1994

[snip]

BOULDER

Historic Boulder's 11th annual Historic Homes for the Holidays Tour starts Saturday. Seven homes in the University Hill neighborhood will be featured. Once a cow pasture on an isolated hill above Boulder, development began here in the 1890s, with lots selling for $ 9.22 each. Today, the neighborhood features a variety of architectural styles and mature trees.

Three of the homes were designed by Boulder's first architect and master-builder, Glen Huntington. The earliest is a finely crafted Tudor Revival at 715 12th St., built in 1923, with cathedral ceilings in the living and dining rooms. Owner Emily Lowrance calls her place "a Christmas house" because she used shades of red and green.

Huntington's 1930 design is a Jacobean/Elizabethan residence at 1500 Baseline Road, with steeply pitched roofline, gables with half-timbering, and a spacious living room.

The last of this group, a Colonial Revival, was built in 1940 at 701 Seventh St., with gabled dormers and paneled windows. A large addition was built by Cindy and Charles Jones, the owners for 12 years.


A 1927 Tudor house at 755 15th St. is being restored to its original elegance by Patsy and John Ramsey, who also are opening it to light and air. A spacious master suite with dormers has gone into the unused attic, and a sun porch became a dining room.

A 1931 Jacobean/Elizabethan home at 1427 Cascade Ave. is enlivened with mementos from the career and travels of former U.S. State Department diplomat Robert Goold and his wife Libby. A sturdy Foursquare home at 845 12th St. was built in 1908, and has recently been given a window-filled addition by new owners Arnold Jacobson and Victoria Johns.

The 1935 Colonial Revival at 770 12th St. also has been given an addition - a large sun room and master bath by owners Carol Francipane and Donald Lococo. They also modernized the kitchen from the studs out.

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