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Legal Issues Surrounding JBR Case

Page history last edited by -searchinGirl 11 months, 2 weeks ago


Mistakes Made by BPD

It is widely acknowledged that due to a combination of lack of experience in investigating homicides as well as the limited staff available over the holidays, many mistakes were made by BPD that may have contributed to this case not yet being solved. The following summarizes these mistakes, as detailed by Paula Woodward (Woodward 2016:114-116) [transcribed by Summer Dawn at Webbsleuths]:

  • According to the National Institute of Justice, the following mistakes occurred:
    • No one was in charge that morning. In order of arrival, first the patrol office, the sergeant and then the detectives should have taken over, removing all non essential people in the house and maintain an accurate entry exit log. 
    • The first two on call detectives should gave gone to the home immediately. Instead, they arrived anywhere from two hours and ten minutes to two hours and thirty minutes after they were called, having stopped by BPD headquarters first. 
    • The detectives were not properly equipped. Together, they had one tape recorder between them, so they were unable to record their interviews with the Ramseys. 
    • If a kidnapping had occurred, as first assumed, yellow crime scene tape should have been used for the entire room, not just JonBenet's bedroom, and the entire home should have been photographed and inspected for fingerprints.
    • the one detective who was left by herself in the home after !0 am should have had other law enforcement support. There was still the question as to whether the kidnapper would call, and more interviews with John and Patsy were necessary.
    • John should have never been allowed to search the home unless a police officer was with them. As the parents of the victim, the Ramseys had a proprietary interest in the scene and could have changed it. Although there was nothing at the time to suggest they were suspects, there was nothing to support they were not.
  • Woodward cites additional problems:
    • Also, since no law enforcement officer was with John when he found his daughters body, his reaction could not noted.
    • Detective Lou Smit, hired by the Boulder DA officer during the investigation, later shared his concerns: "The lone detective should not have moved JonBenet's body from the main floor hallway to the living room after John brought his daughters body upstairs from the basement, as this served to further contaminate the crime scene.
    • The Ramsey family should have been taken to the police station immediately after JonBenets body was found for videotaped interviews, collections of clothing, physical forensic examinations of the bodies and immediate test for drug and alcohol.
    • John and Patsy should have been interrogated thoroughly and separately after JonBenet's body was found.
  • Nancy Grace adds "The delay in finding the body was crucial. Had dogs been brought in or simply if a thorough police search of the home had been conducted immediately, including the wine cellar where JonBenét’s body was found, contamination of the body would not have occurred and a much clearer timeline would exist today." 

 

Copyright Law

  • "The photograph of a smiling JonBenet Ramsey in a pink sweater has become the iconic image for one of the most publicized murder cases in history. Now that photograph, along with other still and video images of the slain six year-old beauty queen, is at the center of a critical journalistic debate over the use of copyrighted work. Thousands of news organizations around the world have used the images for nearly a decade, and the director of a California-based photo agency, Zuma Press Inc.(see Q&A below), insists that much of that usage violates the copyrights held by photographers represented by Zuma." http://www.poynter.org/content/content_view.asp?id=106490

 

Defamation Law in General

According to an analysis in Variety of whether Burke Ramsey can prevail against CBS for its airing of a documentary that named Burke as the likely killer of JBR, "First Amendment experts say that a significant factor may be whether the conclusions raised by the project’s many talking heads are considered their opinions, or would be taken as fact." Variety interviewed several legal experts who had disparate opinions on this matter: 

 

Why Burke May Lose. “CBS will argue that a contextual analysis of the series reveals that it was promulgating opinions and theories not facts and is, therefore, not defamatory,” James Sammataro, partner with Stroock & Stroock and national head of the firm’s entertainment litigation practice group, said via e-mail. “Television shows that offer alternative theories of unsolved (or even solved crimes) are a fixture in today’s media (‘Making a Murderer’) and CBS can likely persuasively argue that the average viewer reasonably understood that the docuseries was merely offering the opinions of several experts.”

 

Why Burke May Win. But Larry Iser, a partner at the Los Angeles firm of Kinsella, Weitzman, Iser, Kump & Aldisert, said that Ramsey’s case will be bolstered if he can show what was offered in the documentary series were false facts.

“The First Amendment is not absolute. It doesn’t protect against yelling fire in a crowded theatre, and it doesn’t insulate a filmmaker or a media defendant that intentionally or recklessly publishes false facts,” he said.  “In his complaint, Burke Ramsey claims that the documentary is rife with outright lies, half-truths, manufactured information, and the intentional omission and avoidance of truthful information about the murder of his sister. If he can prove that, the defendants would be liable for defamation.”

 

Some believe CBS is protected through its disclaimer at the end of the show: “The opinions and conclusions of the investigators who appear on this program about how it may have occurred represent just some of the number of possible scenarios,” the disclaimer said. “John Ramsey and Burke Ramsey have denied any involvement in the crime including in recent televised interviews. We encourage viewers to reach their own conclusions.”

 

However, "Iser said that such a message doesn’t necessarily shield a producer from liability. He says that “there is no need to disclaim opinion because opinion is not actionable — only the assertion of false facts is actionable as defamation. A disclaimer does not insulate a defendant from liability for knowingly or recklessly publishing false facts.”

 

Online Defamation Law

The Law

  • Bloggers FAQ: Online Defamation Law. This document, from Electronic Frontier Forum, provides some basic information about libel (i.e., written defamation) and the circumstances under which this can be applied or not applied to on-line activities.
  • Section 230. Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This federal law preempts any state laws to the contrary: "no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." The courts have repeatedly rejected attempts to limit the reach of Section 230 to "traditional" Internet service providers, instead treating many diverse entities as "interactive computer service providers."
  • Case Law.
  1. California Supreme Court Ruling (11/20/06). "Websites that publish inflammatory information written by other parties cannot be sued for libel, the California Supreme Court ruled Monday." Barrett v. Rosenthal, 40 Cal. 4th 33 can be found by searching at this California courts Website. The court ruled "section 230 exempts Internet intermediaries from defamation liability for republication. The statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended. Section 230 has been interpreted literally. It does not permit Internet service providers or users to be sued as "distributors," nor does it expose "active users" to liability."
  2. OPG v. Diebold. "In a victory for free speech and transparency in electronic voting debates, Judge Jeremy Fogel has ruled that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions."
  3. $11.3 Million Defamation Judgment. "A Florida woman has been awarded $11.3 million in a defamation lawsuit against a Louisiana woman who posted messages on the Internet accusing her of being a "crook," a "con artist" and a "fraud"...Sue Scheff of Weston, Fla., pursued the case even though she knew the defendant, Carey Bock of Mandeville, La., has no hope of paying such an award."
  4. Libel Suit Against MySpace.com A recent case involves MySpace.com. "Boulder County sheriff's detectives demanded records from MySpace.com after a Superior woman reported finding pictures of herself on the Web site under a fake profile named "Dirty Whore." MySpace officials have provided the court-ordered records to sheriff's Detective Mike Wagner, who's investigating the criminal libel case."
  5. Libel Suit Against MySpace.com Involving Jann Scott. On November 11, 2006, it was reported "The head of Boulder's public access television station has filed a criminal complaint alleging a former producer put up a MySpace page defaming him. Tony Perri took over Boulder's Channel 54 in January... Earlier this year, Perri suspended producer Jann Scott, saying Scott had begun a campaign of harassment after some of his shows didn't air at the times he preferred...Perri said he tried to get MySpace to take down the profile, to no avail....Scott denied making the MySpace page, and said he doesn't know who did." In the past, Jann Scott has been very critical of the Boulder DA's handling of the JBR case.

 

Libel Suit Against Poster undrtheradar

  • Complaint. Poster undrtheradar is being sued for both libel and assault based on postings that began at Websleuths and eventually migrated to Topix.net. A copy has been posted at Starting Over-JonBenet and The Smoking Gun.
  • Websleuths Response to Complaint. The following was posted on November 7, 2006 by Websleuths owner Tricia Griffith: "Last spring the hat "undrtheradar" posted inflammatory remarks on Websleuths directed at Rod Westmoreland. I, Tricia Griffith, owner of Websleuths, have directed that the thread be removed due to belief that the remarks involving Mr. Westmoreland were false. Any other inflammatory remarks involving Mr. Westmoreland will be removed as well and the poster banned from Websleuths."
  • Who is "undrtheradar"? Lin Wood apparently does not know undrtheradar's identity, else he would not have made this claim in his suit. It appears that undrtheradar is from Minnesota (see July 16 post by Internet poster Medium). Internet poster Autumn (see post #17) believes "there's a good possibility" that undrtheradar and Dan Pride, creator of the kingsolomonsgate web site, are the same person.
  • Selected Posts by "undrtheradar." Most posts by undrtheradar have been removed from Topix.Net, but the following thread gives a flavor of his posting style and how posters were responding to his claims. Here's other examples from Topix.net and Webbsleuths. The Complaint contains many more specific examples of undrtheradar's incendiary claims.
  • undrtheradar's Full Theory. In the interests of full and fair public debate over the allegations by both sides in the lawsuit, undrtheradar's full theory has been posted on this wiki.
  • Blog Commentary. An extensive commentary on this case, inclusive of further pieces of undrtheradar's postings, is at CrimeBlog.US.

 

PBWiki Response

The following is a response provided by PBWiki to a lawyer's request to dismantle the entire JonBenet Ramsey Case Encyclopedia on grounds it included allegedly libelous links to a poster's theory at Topix.net. Topix.net removed these allegedly libelous posts and I removed the pointers to them from this site. As a site owner, I am most grateful for PBWiki's strong defense of free amendment rights. Signed, Miss Marple

 

I am posting the response in hopes that it will enlighten others regarding the boundaries of this emerging area of cyber-law:

 

Dear ?????

We have received your message concerning your request to have us: remove an entire wiki hosted by us, bar the wiki’s creator from further activity on PBwiki, and to return to you personally identifiable information concerning the wiki’s users and creator, per your claim that the wiki contained a hyperlink to material you allege to be libelious.

 

The Communications Decency Act of 1996 added as federal law Title 47 Part 230(c)(1), which provides:

 

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

 

This federal provision protects online content providers from libel and defamation lawsuits concerning content posted by their members and has been rigorously upheld by the courts, per Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003), Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998), and Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000).

 

230(c)(1) would be sufficient to protect Coceve, Inc. from claims of libel or defamation for simply hosting content published by its members, and there exists no legal requirement under which we are bound for us to comply with a request for content removal on the grounds that it could potentially be libelious. Indeed, such a mechanism could be used to easily suppress free speech, since we – as a service provider and not a publisher – do not have the capacity to evaluate the correctness of the hundreds of thousands of pages of content posted by our users. While there exist mechanisms for requiring takedown of material on a copyright basis per the Digital Millenium Copyright Act, no equivalent mechanism exists for claims of libel.

 

Likewise, no law under which we are bound compels us to disclose our users’ personally identifiable information by simple request or to restrict users’ use of our service, short of an order by a court of law, such as a subpoena from an applicable jurisdiction. PBwiki is proud to protect the privacy of its users to encourage free speech and open content collaboration.

 

Therefore, we find the claims against our company to have no grounds in California or Federal law. As such, we will not be taking any action.

 

Furthermore, you should be aware that these actions represent to us an attempt to stifle free and open discussion of issues by our members and, more broadly, by the Internet community as a whole. If online service providers had to worry about what their users linked to, it’s unlikely that the rich, hyperlinked environment of the Internet could have come to fruition. This is exactly why online providers like PBwiki were granted protection by Congress from suits like this in the form of the Communications Decency Act. If you continue along your current course, we may explore other options available to us, e.g., OPG v Diebold.

 

Sincerely,

 

 

___________________

David E. Weekly

CEO of Coceve, Inc.

 

 

Law Enforcement Investigation Tactics

Can Investigators Lie During an Interrogation?

  • General Principles. "The courts recognized that deception by law enforcement is often required to solve crimes but also prohibits the police from making false statements to a suspect under certain circumstances."
  1. Shocking the Conscience of the Court or Community Impermissible. "Such impermissible conduct includes an investigator lying about his identity and introducing himself as the suspect’s court appointed attorney. Similarly, an investigator who poses as a clergyman in an effort to obtain a confession under that guise would constitute behavior that shocks the conscience of the court or community. Over the last 35 years courts have upheld countless confessions even though the investigator lied to the suspect during an interview or interrogation. In most of these cases the investigator made false statements about being in possession of evidence that implicated the suspect in the crime e.g., eye-witness, fingerprint, DNA, etc."
  2. Intrinsic vs. Extrinsic Lies. The courts have drawn "a clear distinction between intrinsic lies (dealing with the current investigation) and extrinsic lies (relating to legal issues or the court system)." "telling extrinsic lies to a suspect constitutes inherent coercion and, consequently, renders a confession inadmissible, per se." "courts have consistently prohibited investigators from lying to suspects about the possible consequences the suspect faces if he is guilty of committing a crime. An example of this would be if an investigator falsely tells a suspect that recent legislation allows the suspect to receive probation if he expresses remorse for his crime."
  3. False Assertions vs. Manufactured Evidence. "In the Cayward case police created a fictitious crime lab report which indicated that Cayward’s DNA was found on the victim. After reading the report, Cayward confessed. At trial his confession was suppressed because of the court’s concern that such manufactured evidence may find its way into a court room and undermine the integrity of the evidential system. The significant language from Cayward is that a distinction must be made between, "Making false assertions and manufacturing evidence". The implication is that Cayward’s confession would have been upheld had the investigator only made the false statement, "We have a crime lab report and your DNA was found on the victim.""
  • John Douglas Account. John Douglas has described the actual misleading tactics used by investigators to secure a voluntary confession from a murder suspect. None of what was done in this case was illegal.

 

Use of Lie Detector Tests

Variation by State. Although the polygraph has a better “hit rate” for picking out lies than interrogators working without lie-detection technology, a handful of state courts have completely banned the use of polygraph evidence. Most require agreement from both prosecution and defense before it can be admitted, with the only exception being New Mexico.

 

Validity of Lie Detector Tests. The polygraph—as currently applied by American law enforcement—has a “lie bias,” meaning it’s far more likely to misclassify innocent people as guilty rather than vice versa, says Maria Hartwig, a professor at the John Jay College of Criminal Justice and an expert in deception detection. “That’s not the kind of error I would like a test to have,” 

 

Should Suspects Refuse Lie Detector Tests?  Professor Hartwig says. “If I were innocent, I would not take a polygraph.” Similarly, Douglas Williams, a former polygrapher for the Oklahoma City Police Department, who conducted about 6,000 tests over 7 years, says Nobody in their right mind would ever submit to a polygraph examination. And if you think you’re going to prove your truthfulness by it, that ain’t gonna happen. Even if you do pass it, the polygraph operator will at best say it’s inconclusive.

 

Can a Lie Detector Be Beat? Douglas Williams also says the test is easy to beat. "Let’s just talk for a minute about how a polygraph is scored. They have two types of questions: relevant questions and control questions. Now, relevant questions are those that obviously pertain to the point of issue. Let’s just say you’re accused of molested a 10-year-old girl next door to you… here are the questions we’re going to ask you: Did you molest Suzie? Then we’re going to go through all the elements of the crime. Did you touch her? Did you do this? Did you do that? Then we’re going to intersperse what are called control questions. These questions are benign. Did you eat breakfast this morning? Can you drive a car? Is the sun shining outside? If you have a reaction on a relevant question and no reaction on a control question, they say you have lied. If the reverse is true—if you show no reaction on a relevant question and a reaction on a control question—they say you’ve told the truth. That’s how you pass a polygraph test: You learn how to relax when they ask a relevant question, and you learn how to manipulate a reaction when you answer the control question by thinking of something frightening." 

 

Unreliability of "Demeanor Evidence"

According to Mark Godsey, author of Blind Injustice, "the innocence movement has exposed more than 2,000 wrongful convictions in America, with the number growing at a rate of about three per week. And if we’ve learned anything from this movement, it’s that, contrary to popular belief, humans are really bad—really, really bad—at determining when someone else is telling the truth or lying." 

  • "Despite what our intuition tells us, demeanor evidence just doesn’t mean that much and can’t be taken to the bank. And that’s been proven not just by the thousands of innocents who were wrongfully convicted after the police or jury disbelieved them and thought their demeanor indicated guilt, but by clinical studies as well." 
  • "As I highlight in Blind Injustice, study after study shows that we are about 54 percent accurate at divining the truth from watching someone’s demeanor. Barely better than a coin flip. And cops fare no better. Things we have been told are indicative of dishonesty and guilt, such as appearing aloof or unemotional, or failing to make eye-contact, are actually not good barometers. Our collective psyches are embedded with the belief that humans are good lie detectors. But in reality, it’s just folklore—outdated pop psychology."
  • "Everyone reacts differently to tragic situations. Fortunately, very few of us have experienced the trauma of having a loved one murdered. Some people appear aloof or emotionless because they are in shock or denial. Some people freak out. The assumption that there is an “appropriate” or “normal” way to act in an unfamiliar traumatic situation, and that those who do not respond that way are likely guilty, is simply bad psychology and bad law."  

 

Specific examples include Scott Peterson. According to Godsey, "Scott Peterson was convicted primarily because of what we call “demeanor evidence.” Peterson undeniably appeared “aloof” and “unemotional” if not cocky when caught on camera by the paparazzi during the investigation and then at his trial. This caused America’s most famous prosecutor-journalist, Nancy Grace, to preach on an almost nightly basis that Peterson was “lying” and “hiding something” and therefore guilty. And the jurors said after the trial that Peterson’s remorseless demeanor was perhaps the most critical factor that caused them to convict him and send him to death row." Yet "new evidence—the actual evidence—now being considered by a federal court in California should cause any open-minded person to question the evidence that originally convicted him.  And I’m not just reacting to the provocative reexamination of evidence presented in the docuseries, I also read the court filings."

 

Grand Juries

  • Benefits of Using Grand Juries. Some of the benefits of grand juries include: a) the ability to subpoena records and witnesses; b) they operate in total secrecy, which may make witnesses more willing to talk; and c) through the prosecutor, they can offer immunity for testimony; and d) they can compel witnesses to testify without the presence of their attorneys.
  • Indictments.
    • Ease of Getting IndictmentsAccording to Nolo, "in part because there’s no one on the "other side" to contest the prosecutor’s evidence, grand juries almost always return an indictment as requested by the prosecutor. According to a U.S. Department of Justice study on plea bargaining, “Grand juries are notorious for being ‘rubberstamps’ for the prosecutor for virtually all routine criminal matters.” 
    • Probable Cause Standard. While an actual criminal trial requires that guilt be proven "beyond a reasonable doubt, grand juries use a less stringent "probable cause" standard. According to Nolo, "Where they have a choice, prosecutors often prefer grand juries because grand jury proceedings are secret. When prosecutors file an information, they are usually required to convince a judge in a public preliminary hearing that they have enough evidence to secure a conviction.  This high burden is not present at a grand jury proceeding, where the prosecutor has to prove that there's  only  "probable cause" to believe that a crime occurred and the  target of the proceeding comitted it."
    • Unanimity Not Recurred. Unlike an actual criminal trial, which generally requires a unanimous verdict, grand juries do not. According to Findlaw, "grand juries do not need a unanimous decision from all members to indict, but it does need a supermajority of 2/3 or 3/4 agreement for an indictment (depending on the jurisdiction)." 
    • Failure to Indict is Rare. According to KQED News, "using Bureau of Justice Statistics data, the news site FiveThirtyEight found that federal grand juries declined to return an indictment in 11 of the 162,000 cases that U.S. attorneys prosecuted in 2010. That’s a no-indictment rate of less than .007 percent. Keep in mind that this figure applies to federal cases — aggregate data for state grand jury decisions is harder to come by — so the numbers aren’t directly comparable, but it does give a sense of how rare a no true bill is in any type of grand jury." 

 

"Clearing" Suspects 

  • Beckner Deposition. According to BPD Police Chief Mark Beckner, in a deposition, when asked whether Chris Wolf had been cleared, he responded "Well, I think the problem comes in semantics and people use that term differently and some detectives may use those words. If you're asking me is he cleared, I would say -- tell you no. I would tell anybody no. We haven't cleared anybody in this case until we solve it. Then everybody except the person responsible is cleared at that point."
  • Lacey Press Briefing. According to Boulder DA Mary Lacey, a press briefing, when asked "would it be fair to say that is any involvement by John or Patsy Ramsey completely ruled out by your office?" she responded "You know, there’s these terms out there “Umbrella of suspicion”, we don’t use that.You know, no-one is really cleared of a homicide until there’s a conviction, in court beyond a reasonable doubt.And I don’t think you will get any prosecutor… unless they were present with the person at the time of the crime… to clear someone."

 

Can Lawyers Lie? 

 

Interrogations

Detecting Deception 

 

Talking to Police

  • Never Talk to Police: Here's Why (video: 47:15 min.): Law Professor James Duane gives viewers startling reasons why they should always exercise their 5th Amendment rights when questioned by government officials. 

 

 

 

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