WOOD: Are we prepared to give the media the power to decide guilt or innocence? In this instance, the media decided guilt, guilt with respect to a 12yo child.

ZWEIFACH: No one wants to hurt a 12yo. The fact is, a 6yo girl was murdered in her own home with her parents and her brother the only ones there. The state, which has looked into it, has developed no credible evidence of an intruder. Something awful happened there, and we're going to look into it.

GVS: JonBenet Ramsey's 12yo brother Burke files a multi million dollar lawsuit against "The Star" tabloid. Does this open the door to another investigation of the crime or shut down the tabloid rumor mill?

Hello and welcome to BURDEN OF PROOF. "JonBenet Killed by Brother Burke": So screamed the headline of the "Star" magazine last May. By June, that report was retracted, but John and Patsy Ramsey, on behalf of Burke, say that isn't good enough.

COSSACK: Earlier this week, the Ramseys filed a $25 million libel suit on behalf of their son, who was nine years old when sister when his sister was killed. Within the suit, the Ramseys declare that their 6yo daughter, JonBenet, was killed by an unknown intruder.

GVS: Joining us today in Atlanta is Burke Ramsey's attorney, Lin Wood. And here in Washington: Avey Allen; Gerson Zweifach, who's the lawyer for "Star" magazine; and Eric Mitchell. And in our back row, Melinda Miller and Alexi Smoody.

Gerson, first to you, since you represent the "Star" tabloid, the defendant in this case. On May 25, 1999, the headline on the "Star" was "JonBenet was Killed by Brother Burke," and then subsequently, about a month later, on June 22, 1999, down at the bottom of the it says "Ramsey's Quit Home on Eve of JonBenet Verdict," plus, in very small letters: brother "Burke Cleared We Were Wrong." Why weren't those letters as big as the headline on May 25 accusing Burke?

ZWEIFACH: Well, Greta, the sufficiency of a retraction's going to be judged by the court, but the decision was made to put it on the front page, to use simple terms. I don't think you've seen too many retractions on the front page of any newspapers that says, "we were wrong," and there's a further retraction and correction inside, just as the original story ran, on the inside.

GVS: Now, "Star" magazine and many of the tabloids are vetted quite intensively by lawyers. How did it slip through the cracks, or how was it that the headline would be wrong: "JonBenet Was Killed by Brother Burke." I mean, how does that happen?

ZWEIFACH: Well, you know, we can't talk about the sources for a story like this on national television, but I will tell you this: The Ramseys on the family and brother Burke were the subject of intense scrutiny for years, long before the tabloids got interested in the story. The "New York Times" ran a story to the effect that three handwritings experts said that the ransom note was written by the mother, which led to the question, who was she protecting, why is she casting interest outside the home, why would she do such a thing. So, there was a great deal of interest. The "Star" had information that Mr. Ramsey, Burke Ramsey's, lawyer, was in Colorado negotiating with the prosecutors. He was negotiating, but he wasn't negotiation a plea, he was negotiating a grand jury appearance. What I will tell you is this: that as soon as the D.A. came out and said, that's wrong, we're not negotiating, he's not our prime suspect, we said so. First time first chance we had, on the front page, words of one syllable: "we were wrong." We did the right thing.

GVS: How soon after how soon after I mean, the date on this is June 22nd when the retraction was printed. How soon after that, after Alex Hunter clearing Burke did the "Star" do that?

ZWEIFACH: One of the things, the cover dates on these is the off-sale date. As soon as Alex Hunter made a statement, the lawyers assessed it, they prepared the retraction and put it in.

VAN SUSTEREN: Days?

ZWEIFACH: Days.

COSSACK: Lin, Lin Wood, Gerson says that in fact they had foundation, good information that would lead them to believe or a reasonable person to believe that Burke did commit this, and once they found out that he didn't they then filed a retraction. What more would have you them do, he says.

WOOD: Well, first of all, I would have asked them to make one phone call before they published the story, call the D.A.'s office, Alex Hunter, asked him if, in fact, the story was true. They would have learned at that time, before they published it, that Burke Ramsey was not a killer, Burke Ramsey was not a suspect, Burke Ramsey was not even a possible suspect.

GVS: Let me interrupt you for one second, Lin, because I've got to tell you: I made a lot of phone calls to the D.A.'s office and it's not so easy to get through to the D.A.'s office. In fact, they don't return many calls at all to the media.

COSSACK: And let me interrupt Greta for one second and say, you know, I might agree with you that that's probably in a perfect world what should have been done, but is that really the law that they're required to do, is to make that phone call, if, in fact, they believe they have reasonable information?

WOOD: Burke Ramsey is a private citizen. They owe to that child a duty of reasonable care. All they had to do was make the phone call. They could have simply been aware of the fact that the police chief in 1998, a year earlier, had indicated that Burke Ramsey was a witness, he was not a suspect. But let me address directly this question of this now well rehearsed story that Gerson has come up with. "Star" magazine was prepared one month ago, one month ago, to run the same story about this child: "I Expose JonBenet's Real Killer." They were going to run a story that Burke Ramsey was the killer under the guise of paying a man named Bo Diddle to go out and do an investigation. They did not publish Burke's name in October because they learned before the magazine came out that I had been hired by the Ramsey family. This magazine publishes vicious lies, they published a vicious lie about Burke Ramsey, and they did it for profit. And if the Ramseys had not hired a lawyer and said, we're not going to tolerate it, this magazine would have done it again.

GVS: Let me ask you, Lin, I mean, there have been an awful lot of things written also about John and Patsy Ramsey, but there's no libel action filed on behalf of them. By virtue of filing on behalf of Burke, are you saying that the "Star" magazine has not libeled the parents?

WOOD: No, not at all. There's no question in my mind, Greta, that John and Patsy Ramsey have been libeled. I think they may well be the most libeled people in the modern history, along with their son, Burke, but they asked me to first concentrate my efforts for Burke. John and Patsy Ramsey lost a child in 1992, they lost another child in December of 1996 and then they've had a child branded a murderer, called a killer by a magazine for profit. That is an outrage. John and Patsy Ramsey said they were not going to sit back and tolerate it. They wanted my efforts first directed for their son, Burke.

COSSACK: All right, Gerson, you've heard the accusation by Lin that you were about to publish this other article but in fact didn't because you found out there was a lawyer in the picture. True or not true.

ZWEIFACH: I have absolutely no reason to believe that what he says is true. What I will tell you is this: it is really too early in this case we haven't even been served with a complaint to throw around adjectives and to sling mud. Whether this is an outrageous story, well, let's find out the facts. If these people murdered their child or if they covered up their son's murder of their child and now they filed a libel suit, that's what's outrageous. But let's reserve judgment and calm down and not throw rocks and get at the facts. This is

GVS: This is what

WOOD: Do I do I hear

GVS: Gerson, this is a simple thing, is I mean, the issue here is whether it's libel, whether something was wrongfully said about Burke and whether or not the retraction is sufficient to cure the wrong, and if it's wrong, if it's libel, how much it costs. Is that the issue?

ZWEIFACH: That's true, but let's be clear: The Ramseys wouldn't take yes for an answer. They have rejected the retraction, they have taken the position that the retraction is a nullity, and so the truth

GVS: May not be enough.

ZWEIFACH: and so the truth is at issue. The truth is very much at issue, and in his complaint that was filed, Mr. Woods said that this child was murdered by an unknown assailant, a complaint under the name of John and Patsy Ramsey through their child. Let's find out if that's true.

COSSACK: All right, let's take a

ZWEIFACH: Let's conduct a complete investigation, because one thing we know is the governor of Colorado has said that the investigation that the state has done has been stonewalled and stymied by the Ramseys.

COSSACK: All right, Lin, I'm going to give you a chance to respond. Let's take a break now. More with Lin Wood, the attorney for Burke Ramsey and the Ramsey family. Stay with us.

John and Patsy Ramsey have filed a libel action against "The Star" on behalf of their son, Burke. Lin, I want to give you a chance to respond to what Gerson said earlier, go ahead.

WOOD: Well, I want to talk for a moment if I can about the retraction. If you take a look, if you have it for the graphics, you will notice that the retraction is down in the bottom, right-hand corner in very small print. Most people probably would not even see that statement as the magazine actually is positioned in the rack when you go past the checkout counter in a supermarket. It wasn't timely. It wasn't published as conspicuously as the libelous statement. And I don't think the retraction is worth the paper that it is written on. The damage was already done to Burke Ramsey by the lies that were told about him.

GVS: Gerson, if I were the defense attorney on this case representing the Ramseys, and they still are under this umbrella of suspicion, I would be terrified that, even in light of 100 percent innocence, I would still be terrified that you would want to depose John and Patsy Ramsey. Do you intend to put them under oath?

ZWEIFACH: Absolutely.

GVS: And how do you justify that?

ZWEIFACH: Well, here is a story about a murder. And it's a murder that took place in a home where a child was killed and there are only three people in the house with her and

GVS: How is that, though, an issue though? I mean, you have admitted, you have this story where you accuse Burke of murder, you then say you are wrong, how is that relevant?

ZWEIFACH: What we said was wrong was that the D.A. had targeted him as the lead suspect. That was the core of that story, that was what we ran with in the next story.

COSSACK: The headline says "Burke Did It."

ZWEIFACH: If you go on and read the story, what it says is, that is the D.A.'s theory of the case. And if you read the story, it lays out the D.A.'s theory of the case.

COSSACK: So you are going to depose the Ramseys and try and actually be sort of an amateur sleuth and ask them all the questions that, regarding their participation in this?

ZWEIFACH: Well, honestly, it's not an amateur sleuth. It's the one thing that we know the grand jury has never done. They have never had the Ramseys under oath.

COSSACK: Lin, can they do that? Can they take the Ramseys and ask them those questions?

WOOD: They have the right to depose John and Patsy Ramsey. Look, John and Patsy Ramsey are innocent people. They have nothing to hide. They have had their lives covered from birth to date, every square inch, for three years, millions of dollars and a grand jury after one year said: This evidence doesn't even justify bringing a charge.

GVS: Well, I don't think we don't know what they said, Lin. I mean, frankly, we know that there was no indictment returned.

WOOD: I disagree with you. Well, that speaks volumes, that grand jury was empaneled to indict John and Patsy Ramsey. They refused to do so. So I disagree with you, Greta, that grand jury's non-action spoke volumes. Now, let's take a look at what the Ramseys are doing. They are some would argue putting themselves at risk for "The Star" magazine to try to take this litigation and make more money by publishing more stories about what is said during the litigation. They know that they are at risk of "The Star" magazine trying to abuse the process, but they have no fear. They are coming into this court, they are going to do what is necessary to vindicate their son, and to hold this tabloid accountable for what it said, the vicious lie that it said.

GVS: I tell you why, Lin, I think they do have fear because innocent people have fear when they have when they are the target or they're under the umbrella of suspicion because somebody thinks that they are more than just innocent people. And when they're put under oath, they could say something inconsistent, innocently, with something they have said before and create a greater sense of suspicion.

WOOD: Greta, I'm not concerned that a natural and honest inconsistency on a minor detail is going to be of any harm or put the Ramseys at risk. What they are not going to do is to sit back quietly any longer. They are going to do what it takes to undo the damage that was done to their son to make sure that he is vindicated and that this is not done again to another child. We're talking about a 12yo child that was branded a killer, it is unconscionable.

COSSACK: Gerson, what kind of questions would you want to ask the Ramseys?

ZWEIFACH: Look, the Ramseys and their son were the only people in that house. The state of Colorado and its blue ribbon panel and the governor have apparently concluded that there is no credible evidence of an intruder. So we're down to three. The plaintiff and the two people who brought the case.

COSSACK: But, wait a minute, Gerson, they have also concluded this grand jury that spent a lot of money and a lot of time, and they have also concluded that there is not enough evidence to indict the Ramseys.

ZWEIFACH: No, no, no

GVS: We don't even know that. I got to tell you, we don't know that. What we know are no charges have been filed.

COSSACK: Well, but what is that? hey were there with the job to indict people that they felt there was probable cause to indict.

GVS: No, but technically, Roger, I mean, this is a technical standpoint, they could have indicted and the prosecutor not filed, and we would never learn about.

ZWEIFACH: Let's use a phrase familiar to viewers of your program: burden of proof. What happened here is that the state, so far, apparently has decided it's not prepared to prove a case

COSSACK: But the burden of proof for an indictment, Gerson, is

ZWEIFACH: let me finish, beyond a reasonable doubt.

COSSACK: here, just for an indictment is here.

ZWEIFACH: No, no, no, no, they have said that they are not prepared to prove a case beyond a reasonable doubt. In my case, it is Mr. Wood who has the burden of proof. He has the burden of proof under the Constitution of proving falsity. What I need to do

GVS: But you have written a retraction. You have got a retraction.

ZWEIFACH: I've got a retraction of the fact that the D.A. thought that was the killer. Now, you read the complaint, paragraph 24 says forget what the D.A. thinks paragraph 24 says "We represent the filers of this complaint that it was unknown assailant." We are going to test that proposition.

GVS: All right, we are going to talk a break. We'll be right back. We'll let Lin Wood respond and we'll talk more about this case. Stay with us.

Welcome back to BURDEN OF PROOF. We are talking about the libel action filed by John and Patsy Ramsey on behalf of Burke Ramsey, their son, against "The Star" tabloid. Lin, before we went to break, you want to talk and respond to what Gerson had to say, so go ahead.

WOOD: Thank you, Greta. This idea that the story was about the D.A.'s theory of the case is just nonsense. The statements published about Burke Ramsey: Burke Ramsey killed JonBenet; that he had a twisted mind; that he killed her when she came into his bedroom in this pent-up rage that exploded into a physical assault. That's what they said about this child, it had nothing to do with the D.A.'s theory of the case. It was fiction and it was fiction published for profit. These tabloids have a history of doing this to people and now they have done it to a child.

GVS: Lin, does Burke actually know about what has been written in the tabloids? Does he know about these articles?

ZWEIFACH: Burke is aware that he has been accused of the murder of his sister. John and Patsy have tried to shield him from the specifics, but he is aware of these kinds of accusations that have been made. And it is just what that child must carry inside of him and what he has to face for the rest of his life. Let me tell you something, Greta, Roger, and Gerson, your apology is not sufficient, you should have never done this to a child.

GVS: All right, well, let's go to the phone. We are joined on the phone by Linda McLain, who is a close friend of Patsy Ramsey. Linda, you have also appeared on this show. Do you know what the effect has been of these articles about Burke to Burke?

LINDA MCLAIN: No, like Lin said, they have shielded Burke pretty much. I do know what it's been on Patsy and John though, it's been terrible, and they've decided, you used the word "terrified," they're not terrified. They're going to fight back. I thought what was interesting that "The Star"'s lawyer said earlier to you was: It's too early to sling mud. Well, they sling mud every week and I see it in the grocery store when I am walking in and out of there, and I'm tired it, and they're tired of it, and as far as they're concerned, it is organized crime.

COSSACK: Gerson, in terms there is a lot of people who probably echo that kind of sentiment. How are you going to respond to that?

ZWEIFACH: Look, it is a disturbing story. The only thing more disturbing than the press coverage about this are the facts. Here are the facts: This child was murdered in her own home and found in the basement. Three people in the house: mom, dad and her brother. And no credible evidence of an intruder.

WOOD: Not true.

ZWEIFACH: So that is a very disturbing set of facts.

COSSACK: Lin, respond to whether or not there is credible evidence of an intruder. Or do you even have to in this case?

WOOD: You have got DNA that does not match. You have got a palm print that doesn't match. You have got a host of facts that point toward the idea that an intruder committed this crime. Those facts have not been discussed by the media. The media has simply taken a lot of what the tabloids have put out here and they have accepted it as true. You could go through the cooperation, for example, that John and Patsy Ramsey have provided to authorities and you would have several pages of information about what they have done to assist the prosecution of this case. Yet the governor comes out and says they haven't cooperated at all.

ZWEIFACH: And he says they are the prime suspects.

WOOD: He was wrong, he was wrong, he was misinformed, or maybe he was prejudiced. But I will tell you something, "Star" magazine was wrong too, and we are going to prove it in this courtroom. We are going to prove it in this lawsuit. We have no fear of taking on the facts of this case. The facts will prove that Burke Ramsey was libeled and "Star" magazine will be held accountable for it. Those will be the facts.

COSSACK: And when this case proceeds, BURDEN OF PROOF will bring you all of the information because that's all the time we have for today. Thanks to our guests, and thank you for watching.

GVS: And speaking of getting it wrong, yesterday, our "Legal Brief" contained an error. We mistaken said that Brian Peterson, who admitted to throwing his infant son into a hotel dumpster in 1996, was serving a sentence for murder. In fact, he pleaded guilty to manslaughter. We'll be back again with another edition of BURDEN OF PROOF.