A preliminary hearing, to a limited degree, is an adversarial proceeding. A defense attorney can cross-examine. There might be probable cause, but maybe there isn’t a reasonable likelihood of a conviction. So maybe the DA says, “I want a judicial officer to review the evidence.” And there is some public benefit in that, because all the evidence gets aired.
There’s a downside and an upside. You might have a judge who is well versed in criminal law saying that some evidence is admissible at a preliminary hearing and before a grand jury but will never be admissible in a trial. Depending on the nature of the evidence, a prosecutor might want to have that unbiased judicial arbiter.
That may be the reason you take the case to a preliminary hearing.
—Bob Grant
On November 14, the grand jury met for the fourteenth time. That week the CBI leaked to a journalist that the DNA of a second person—and possibly a third person—had been discovered on JonBenét’s underpants. Even though the police and the CBI had known this since February 1997, the CBI was now using a new PCR 21-band DNA testing method in the hope of finding a match. The CBI was also trying to match the foreign DNA on JonBenét’s underpants with the DNA found under her fingernails. The journalist did not report the leak.
That same week, a reporter covering the case had an off-the-record lunch with an attorney connected with the Ramseys. By now, the lawyer had become so embittered that it was visible in his eyes. He said his clients were going to be a human sacrifice to the media culture that now prevailed in the world. “It’s the LaBrea tar pits,” he told the journalist. “You get in it, you can’t get out, and you die.” He was sure there was at least a 50-50 chance that his clients would be indicted. He was also sure that the majority of Americans had already convicted them. The attorney said he wasn’t so sure that Patsy would survive a trial. Not that she’d commit suicide, but she might suffer a relapse of her cancer from the stress. In fact, he was surprised that Patsy, exhausted as she was, hadn’t already had a relapse.
Later, a different writer had lunch with another attorney representing the Ramseys. At times, the writer raised his voice above the ambient noise of the restaurant, loud enough to be overheard from nearby tables. At 2:00 P.M., the attorney said he had to leave but suggested that the writer finish his meal, which he did. Moments later, a woman approached his table and sat in the booth where the writer’s guest had been seated. She was well dressed and spoke in a soft voice.
WOMAN: I hope you don’t mind. You see I’m a friend of a grand juror. This case is so complicated. I don’t know if I’m allowed to talk to you or if my friend should have been talking to me.
WRITER: I’m sure she knows the law better than I. Someone must have explained it to her.
WOMAN: I don’t know. It’s so confusing that she has had to go to her astrologer for help.
WRITER: Is that so?
WOMAN: Do you know about that secret room the Ramseys built for $150,000? I don’t know what they did in that room, the one on the ground floor.
WRITER: I didn’t know.
WOMAN: And you must know about the dumbwaiter on the second floor. That’s where they found some of her blond hair. Caught in the door. And you know they used chloroform on her? They think she was taken that way.
WRITER: I didn’t know about the dumbwaiter.
WOMAN: I didn’t know either until I was told.
With that, the woman got up and went back to her table.
“The system will put it right,” John Ramsey had often said. And each time they failed, he was confident that at the next juncture, things would be put right. He had begun to think that way while waiting for their April 1997 police interviews. When those interviews failed to diminish the police’s interest in him and Patsy, he waited for the next chance to put things right. A second set of interviews with the DA’s office in June 1998 had changed nothing, and now the grand jury was meeting. At this point his lawyers had told him it was likely Patsy would be charged. He just didn’t know how to tell her. Nevertheless, Ramsey didn’t lose faith in the process.
He knew they would have to wait for a jury to decide. Only then would he and Patsy be exonerated.
Like many Americans, Steve Thomas and Lou Smit, waited for the grand jury to finish hearing the case. Smit and Thomas, both intimately familiar with it, had different opinions about the meaning of the evidence. Smit hoped that the evidence would exonerate the Ramseys, while Thomas believed that it would cast enough doubt to let them off. The two detectives agreed, however, that all conclusions about the case—as well as the grand jury’s verdict—hinged on seven major items of evidence.
The first was the pubic hair found on the white blanket that had partly covered JonBenét’s body. There was only one test—called advanced mitochondrial—that could still be done to tie the pubic hair to someone. There was so little of the hair left after the previous tests, however, that this mitochondrial test would destroy what remained. Some of the detectives believed that the hair belonged to some family member, but the couple’s attorneys had objected to doing the destructive test at this time. They insisted that it should be conducted only when a suspect had been matched to other elements of the crime—and, of course, no one, including the Ramseys, had been conclusively matched to any element of the crime. It was also possible that the hair had adhered to the blanket in the Ramseys’ dryer, left there by another garment on some earlier occasion.
The shoe imprint found near JonBenét’s body was the second piece of evidence. Ron Gosage had compiled a list of more than six hundred people who had been in the Ramseys’ house during the six months prior to JonBenét’s death. He had gotten in touch with more than four hundred of those people, and not one of them had ever worn or owned that kind of Hi-Tec hiking shoe. The imprint was of the “poon”—the area on the sole at the heel where the brand name is stamped. The size of shoe couldn’t be determined from the imprint, since the poon is the same size in all shoes, the better to advertise brands. Unless the detectives could match the shoe to someone who had been cleared of the crime by other means, the possibility existed that it was the killer who had left the shoe imprint.
The third piece of evidence was related to the window in the basement train room. It had been open, there was a scuff mark on the wall under it, and pieces of glass had been found on the suitcase just beneath it—possibly the result of Fleet White’s visit to the basement window that morning when he picked up the broken glass from the floor under the window and replaced some of it on the windowsill. The partial spiderweb on the window-well grate was not conclusive proof that nobody had entered though the window opening. The sudden rise in temperature the morning after the murder allowed for a spider to come out of hibernation and drop its first lines of a new web, and some people argued that the strands of the web itself were elastic enough to survive disruption.
The fourth area of evidence consisted of the unidentified palm prints—one smear of a partial print found on the ransom note and a full palm print found on the wine cellar door. The print on the note covered such a small area of a hand that it could never be matched to anyone. The print on the door had not been matched to anyone whose prints were taken for this case, and the national crime-scene fingerprint database doesn’t include palm prints. Clearly, the print on the door did not belong to John or Patsy Ramsey. If it could be matched to a person who had a legitimate reason to be in the basement, it might mean nothing; but in the absence of such a match, the print was compelling evidence of an intruder.
The fifth element was the stain on JonBenét’s underpants containing mixed (foreign) DNA. The first component was JonBenét’s. Testing showed that the second or—possibly, third—component did not seem to match either parent or any relative, friend, playmate, or acquaintance whose DNA sample had been taken. How could the foreign DNA have gotten onto the underpants? It was possible that it belonged to the person—as yet unknown—who had killed JonBenét. It was also possible, however, that it came from a known person who had not given DNA s
amples and did not want to reveal that he or she had had contact with JonBenét in a manner that left DNA on her underpants. Such a person could be someone who had helped wipe JonBenét while she was on the toilet. The person might have been afraid that no truthful and innocent explanation would satisfy those who were eager to find a murderer.
The sixth element—in Lou Smit’s opinion only—was the possible use of a stun gun on JonBenét. The autopsy photos seemed to show marks consistent with those left by such a device, and the marks were fresh enough to have been caused during the murder. So little support had been given to this theory, however, that nobody had tried to have JonBenét’s body exhumed for the necessary testing of the skin tissue.
The seventh was the ransom note. Did Patsy write the note was a question that handwriting experts were battling over. None could say for sure. Even more mystifying, the ransom note itself showed no fingerprints or signs of handling, creasing, or damage. Patsy said she saw the three sheets of paper comprising the note spread across the entire width of a step as she descended the spiral staircase. She said she stepped over the three pages before turning around to read their contents. The pages showed no indication that they had been stepped on. This seemed plausible until the police recreated the scenario Patsy described. The detectives found it was impossible, while descending this spiral staircase, to skip any of the steps without losing one’s balance and almost falling forward.
Not on the list but equally puzzling were the questions about the duct tape and the cord. The cord had a frayed end and had been cut, but it couldn’t be determined how recently. The tape had been ripped from a roll. How recently that had taken place was also unknown. Why were all the other leftovers from the crime—such as the stick used in the “garrote,” the Sharpie pen used to write the ransom note, and the writing pad—left behind and not the roll of tape and the remainder of the cord? Only the killer knew the answer to that question.
GORDON MURDER TRIAL OPENS
DAVID GORDON CHARGED WITH MARCH
SHOOTING DEATH OF LIVE-IN GIRLFRIEND
For the first time since 1992, a defendant is scheduled to enter a Boulder courtroom today and stand trial on a charge of murder.
Compared to a trio of unsolved Boulder slayings—the Sid Wells, Susannah Chase and JonBenét Ramsey homicides—the [Angela] Foulks murder has received little attention and relatively few headlines in the eight months since the 44-year-old woman was killed [by her boyfriend].
In that time, Gordon had quietly wended his way through Boulder District Court without making a deal with prosecutors.
Foulks had cocaine in her system at the time of her death, according to Boulder County Coroner John Meyer’s autopsy report. “Cocaine is at the bottom of this,” Gordon reportedly told detectives after his arrest.
—Matt Sebastian
Daily Camera, December 7, 1998
Four days later, a jury convicted David Gordon of first-degree murder. In Colorado a first-degree murder conviction carries a mandatory life sentence without the chance of parole.
By December 1998, Michael Kane was calling civilian witnesses. Before anyone appeared, Kane and his staff would conduct extensive interviews. Michael Archuleta and Linda Hoffman-Pugh and her husband, Merv, were called. Fleet White had probably become less paranoid about his own involvement in the events of December 26; in any event, he agreed and testified twice. He was cordial with prosecutors and told the grand jury what he knew. As he left he informed one deputy DA that he was still upset at Hunter for releasing a photo of his daughter and JonBenét to a tabloid. White’s accusation was without merit. The photographer had supplied the photograph to a third party who gave it to the paper. Barbara and John Fernie were next to testify.
Steve Thomas heard that Kane was afraid to call him, fearing an episode like Linda Arndt’s testimony. Kane, according to the rumor, was convinced Thomas would attack Hunter and his office for their handling of the case. Lou Smit also wanted to testify, but he refused to meet with Kane beforehand. Nevertheless, he hoped Levin or Morrissey would convince Kane to call him regardless. Maybe then he could present the evidence he thought would clear the Ramseys.
In early February, it was likely that Michael Kane felt he saw an indictment coming from the grand jury. He and Alex Hunter released the five alternate jurors. There didn’t seem to be any need for them, since only nine of twelve votes were needed for a true bill charging someone in the murder of JonBenét. As Kane walked twice weekly from the DA’s office to the grand jury courtroom he looked like a happy camper. The work with the grand jury was winding down.
In March 1999, Lou Smit couldn’t sit on the sidelines any longer. He went to Alex Hunter and requested that he be called before the grand jury to present his findings. Believing the Ramseys were innocent, he wanted to make sure all the exculpatory evidence had been heard by the grand jurors. Smit reminded the DA that he’d solved more than 150 murder cases during his career. He would become the devil’s advocate. Alex Hunter agreed to call Smit before the grand jury, and Kane went along with the DA.
It took two days for Smit to present his findings to the grand jury.
The presentations made by Lou Smit and John Douglas—the former head of the FBI’s behavioral science unit in Quantico, Virginia, who had been hired by the Ramseys early in the case and who believed in their innocence—started some of the grand jurors thinking differently about the case. Now the jurors started giving out assignments to the DA and Boulder PD. They wanted more DNA samples taken from friends and associates of the Ramseys. Newer methods of testing DNA, not existing two years earlier when the case began, were now available, and the DA began to run many of the past forensic tests all over again. The grand jury felt more investigating needed to be done. As one grand juror put it, “The work on this case is not over yet.”
In May 1999, upon request, the Ramseys brought their son, Burke, back to Boulder to testify before the grand jury. After a full day on the witness stand, Alex Hunter publicly cleared the child of any involvement in the death of his sister.
For the next four months the grand jury did not meet while the Boulder PD continued the inquiry on behalf of its members. Alex Hunter told the media that work on the case might not be completed by October 20, when the grand jury was required by law to disband. If any indictment, a grand jury report, or a no finding verdict was the result of this grand jury’s work, another grand jury, he said, would continue the investigation, or his office would file charges without a grand jury if the evidence presented itself. But for now, Hunter added, the examination into the death of JonBenét was continuing.
Michael Kane, who was still sleeping on a cot in the war room, and Alex Hunter worked over the Labor Day holiday weekend. Some reporters speculated they were writing a report for the grand jury—others were sure they were preparing their closing presentation.
On September 13, just days before the one year anniversary of the beginning of the grand jury’s deliberations, former detective Linda Arndt broke ranks with her fellow officers and appeared on ABC’s Good Morning America. She told her side of what had happened in the Ramsey house during the first hours of the investigation. After pronouncing JonBenét dead, and while kneeling next to the child’s body, she and John Ramsey, just inches apart, had a non-verbal exchange, Arndt said. At that moment, looking at Ramsey, Arndt knew what had happened. Her fear was so great that she tucked her gun close to her and counted out the eighteen bullets in her weapon, not knowing if everyone in the house would still be alive when her fellow officers arrived. To some watching her appearance, it seemed that the murder of JonBenét had irrevocably changed her life. Steve Thomas disagreed with Arndt on many issues, especially who killed JonBenét. He was sure it was not John Ramsey as Arndt indicated. Thomas told a friend, “I’m sure Patsy did it, but the case against her can’t be proven to twelve jurors beyond a reasonable doubt.”
Lou Smit stood firm. The evidence, and his experience, told him that John and Patsy Ramsey couldn’t have killed Jon
Benét. If they did, then nothing made sense.
What neither Thomas, Smit, Hunter, Eller, Hofstrom, nor anyone else connected with the investigation could explain was the use of the noose on JonBenét. The garroting did not connect to any other element of the crime. The FBI had no record of a young child being strangled with one, let alone by a parent.
After JonBenét’s skull was fractured she would have slipped into unconsciousness quickly. It would have been just as easy to end her life by smothering or strangling her by hand. There was no explanation why anyone would even think of making a noose—which takes time—slip it around her neck, and use it to kill her.
Death by this method is gruesome and horrifying. It does not come quickly. The person pulling the cord and tightening the noose little by little around JonBenét’s neck would not even have been able to look away. He or she would have had to eventually look into the child’s face, to be sure that she was dead.
It was so merciless to that child who had once asked, “Do roses know their thorns can hurt?”
11
If someone is ever charged with JonBenét’s murder and the case comes to trial, only then will a jury have the right to pass judgment. We should not consider John or Patsy Ramsey anything less than innocent unless and until a guilty verdict is pronounced on one or both of them by twelve of their fellow citizens. I know it is hard to maintain that level of objectivity when confronted with the facts of a six-year-old’s death, an exceptionally beautiful and charming six-year-old. The urge to blame someone is deep-seated. But we are obliged to remember the presumption of innocence. For, whoever may ultimately be charged with JonBenét’s death is absolutely entitled to a fair chance for an impartial trail—the startling notion, rooted in English common law, that holds every man and woman equal, and equally innocent, before the bar of justice.
Perfect Murder, Perfect Town Page 69