[Information furnished courtesy Justice Watch Forum]
PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
"Plaintiff Chris Wolf submits this memorandum of law pursuant to Local Rule 7.1 in support of his opposition to the Defendants' Motion to Dismiss the Plaintiff's Amended Complaint."
I. INTRODUCTION AND BACKGROUND
This case is for libel, slander, and the intentional infliction of emotional distress. The defendants are non-media, multimillionaire murder suspects in the horrific death of their six-year-old daughter JonBenet Ramsey, who was found sexually assaulted and killed in the basement of their home on December 26, 1996. The court might wish to take judicial notice of the fact that the Ramseys remain the only publicly declared suspects by the Boulder police, the district attorney, and the Governor of Colorado (who the Ramseys have publicly threatened to sue for libel for his statements concerning their guilt. Evidence exists, moreover, in the form of handwriting reports and affidavits from forensic handwriting experts (Plaintiff's Amended Complaint, Ex. 1), that Patsy Ramsey is the author of the ransom note found at the scene of her daughter's murder.
The Ramseys made certain statements in their book The Death of Innocence: The Untold Story of JonBenet's Murder and How Its Exploitation Compromised the Pursuit of Truth ("D.O.I.") (published in March of 2000), and in the media promoting their work, that were deliberately calculated to create the false impression that Chris Wolf was the murderer of their daughter JonBenet. The Ramseys also spent nearly three years hiring private investigators to discover "evidence" of Wolf's "guilt," which they duly turned over to Boulder authorities.
As a result of the Ramseys' continued interest in "proving" that Chris Wolf was involved in the murder of JonBenet, he has unnecessarily become the subject of unflattering and intrusive attention by law enforcement and the media, causing him extreme humiliation, embarrassment, and emotional distress. He has also been exposed to public hatred, contempt, and ridicule in the small community of Boulder, Colorado, where he lives and works.
As set forth more fully below, the Defendants' motion to dismiss the Plaintiff's Amended Complaint should be denied in its entirety. The statements complained of constitute libel and slander and intentional infliction of emotional distress.
II. ARGUMENT AND CITATION OF AUTHORITY
A. The Defendants' Statements Are Defamatory
The defendants claim that the statements complained of by the plaintiff are not capable of a defamatory meaning as a matter of law. In raising this argument the defendants predictably ignore a crucial distinction in the caselaw. For example, although the defendants' correctly argue that it is one of the functions of the court to determine the threshold question of whether a statement is reasonably susceptible of conveying a defamatory meaning, they conveniently overlook the fact that it remains within the exclusive province of the jury to determine whether the plaintiff has in fact been defamed. Bryant v. Avado Brands, Inc., 187 F. 3d 1271 (11th Cir. 1999); South Fla. Water Management Dist. V. Montalvo, 84 F. 3d 402 (11th Cir. 1996).
Ignoring this critical distinction is no small matter since this separation of roles between the court and the trier of fact inevitably leads to an important limitation in the nature of the court's inquiry: "On a motion to dismiss or for summary judgment, the issue is not whether the court regards the language as libelous, but whether it is reasonably susceptible of such a construction. The court may not…interfere with the jury's role by treating as nondefamatory a statement that a reasonable juror may fairly read in context as defamatory." Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986)
According to Georgia statute, a statement is "reasonably susceptible" of a defamatory meaning when "tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." O.C.G.A. 51-5-1
In making this evaluation, moreover, the court must read the words "naturally," within their context, and as an average reader or viewer would understand them. "A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it." Fiske v. Stockton, 171 Ga. App. 601, 605, 320 S.E.2d 590.
The case of Harcrow v. Struhar, 235 Ga. App. 403, 511 S.E.2d 545 (Ga. App. 1999) illustrates this principle. When a libel defendant wrote and circulated a neighborhood flyer implying that the plaintiffs were responsible for shooting his cat, the court found that the writing as a whole could be reasonably construed to imply that the plaintiffs had shot the defendant's cat and were, therefore, guilty of the crime of cruelty to animals.
The Harcrow court held, furthermore, that just because the defendant's flyer included a statement which was clearly intended to act as a general disclaimer ("I'm not saying that they [the plaintiffs] are responsible for this atrocious act, that will be determined by the...police, but they are prime suspects," id. at 546), this fact alone did not negate the other portions of the writing. The court found that a jury could reasonably conclude that the statements in the flyer, when taken as a whole, could be understood to be the equivalent of imputing a crime to the plaintiffs. "The evidence was clearly sufficient for the jury to conclude that the writing published by [defendant] was false and malicious defamation tending to injure the [plaintiffs'] reputation or expose them to public hatred, contempt, or ridicule." Id. at 546.
A similar conclusion was reached by the Second Circuit Court of Appeals in a decision which held that "statements implicating [the plaintiff] in a murder [which] appear among conflicting and speculative versions of an unresolved mystery reflects only that a jury issue exists as to how the words were likely to be understood by the ordinary and average reader, and does not preclude a trier of fact from finding a defamatory connotation." Levin v. McPhee, 119 F.3d 189, 195 (2nd Cir. 1997).
"Words which alone are innocent may in their context clearly be capable of a defamatory meaning and may be so understood." Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 362 (S.D.N.Y. 1998).
The defendants' statements, when taken within the context of their book about the "unsolved" murder of their daughter and the various "suspects" they believe worthy of investigation, are capable of conveying to the average reader that Chris Wolf was a violent murder suspect who "One person had seen…go into an angry tirade aimed at [John Ramsey]" because "the company [John Ramsey] worked for" was "selling arms to South American countries." (D.O.I. at p. 329.) Given the reading public's extensive knowledge of the contents of the Ramsey "ransom note," in which "a small foreign faction" was demanding money in return for the release of the Ramseys' daughter, a court could easily conclude that a fair reading of this statement would lead the general reader (and a jury) to believe that the defendants' intended to convey the impression that Chris Wolf had at least written the ransom note, if not actually murdered JonBenet Ramsey.
Moreoever, the fact that the defendants' state that "By March 1, 1999, we had reported more information on Chris Wolf to the authorities" (D.O.I. at p. 329) only adds to the general impression being created in the reader that the Ramseys had some undisclosed "factual" basis for approaching the Boulder authorities with additional information about Chris Wolf, despite the nearly two years which had passed since Wolf's first appearance as a suspect. More importantly, the implication is that the Boulder authorities were interested enough in this information for the Ramseys to even think they could successfully approach them with it, especially in light of the newspaper and television accounts of the public animosity between the Ramseys and the Boulder police.
The defendants add fuel to the fire by implying that Chris Wolf is a violent murder suspect because of "his strange behavior"; who was "becoming quite agitated" at news reports of JonBenet's murder; who "cursed" and "brooded over the case"; who "said he believed JonBenet had been sexually abused"; and who "hated big business and had a fascination with world political disputes and political violence." (D.O.I. at pp. 204-205.)
The Ramseys then go on to state that "We considered this a very significant lead and gave all the information we had to the police." (D.O.I. at p. 205). What the Ramseys fail to tell the reader, except by implication and innuendo, is why they consider all of this to be "very significant." Clearly, they want the reader to draw the inevitable conclusion that Chris Wolf murdered their daughter. The fact that he "went on our suspect list" and that "he represented too many unanswered questions" despite the police statement that "We have no interest in you," only serves to deepen the impression that the Ramseys have an undisclosed "factual" basis to believe Chris Wolf is a murderer.
The defendants' statements, moreover, are libel per se. "Whether stated directly or by implication or innuendo, it is libelous per se to falsely state that a person is guilty of a crime or has a criminal case pending against him." (emphasis added) Harcrow v. Struhar, 236 Ga. App. 403, 511 S.E.2d 545, 546 (G. App. 1999); Mead v. True Citizen, Inc., 203 Ga. App. 361, 362, 417 S.E.2d 16 (1992); Melton v. Bow, 241 Ga. 629, 630-31, 247 S.E.2d 100 (1978); Witham v. Atlanta Journal, 124 Ga. 688, 53 S.E. 105 (1906). Therefore, it is unnecessary for the plaintiff to plead special damages.
B. Defendants' Made Actionable Statements of Mixed Opinion and Fact
Another threshold issue for the Court to determine is whether the defendants' statements are opinion or fact. "There is no wholesale defamation exemption for anything that might be labeled 'opinion.' To say otherwise would ignore the fact that expressions of 'opinion' may often imply an assertion of objective fact." Eidson v. Berry, 202 Ga. App. 587, 588, 415 S.E. 2d 16 (1992). (emphasis added) As the U.S. Supreme Court explained in Milkovich v. Lorain Journal, 497 U.S. 1, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990), the Constitution does not offer wholesale protection for so-called "expressions of opinion" if those expressions imply assertions of objective fact. ("As Judge Friendly aptly stated: 'It would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words 'I think.'id. at 18-19.) The Milkovich court also observed that "It is worthy of note that at common law, even the privilege of fair comment did not extend to 'a false statement of fact, whether it was expressly stated or implied from an expression of opinion.'" Id. at 19.
A statement cast in the form of an opinion may imply the existence of undisclosed defamatory facts on which the opinion purports to be based, and thus may be actionable. Jaillett v. Georgia Television Co., 238 Ga. App. 885, 890, 520 S.E. 2d 721 (1999); Restatement (Second) of Torts 566 (1977).
When John Ramsey made the televised statement that "This is it. This is the killer." he was offering more than just his "opinion." He was implying that there were facts provided to him by his private investigators, which remained undisclosed to the television viewer, which led him to the conclusion that Chris Wolf was "the killer." During the program, the Ramseys had talked about the investigation their private detectives had been making in the case without sharing the results with the audience, implying that there were facts to the case that were still not generally known to the public.
John Ramsey then tried to "clean up" his libelous statement by adding a "disclaimer" from one of his investigators, who is alleged to have said "Whoa, whoa, whoa...Don't do a Boulder Police on me. Don't rush to conclusions." (In a curious footnote in the defendants' Brief, counsel makes the half-hearted claim that "on its face, the statement does not appear even to refer to Plaintiff.... Whether NBC displayed Plaintiff's picture while Mr. Ramsey spoke those words was outside the Ramseys control..." (Def. Br. p. 20). Predictably, the defendants' fail to point out the obvious fact that NBC, as a third party, thought the statement was "of and concerning" the plaintiff, which is why they showed his picture at that precise moment in the first place. A jury could just as easily draw the same conclusion as NBC.)
Remarkably, these facts are very similar to those of Harcrow v. Struhar, 236 Ga. App at 403-4, in which a Georgia Court of Appeals rejected the argument that a general "disclaimer" by a cat owner accusing his neighbors of shooting his pet was vitiated by his statement that "I'm not saying that [the plaintiffs] are responsible for this atrocious act, that will be determined by the [police], but they are prime suspects.." Id. at 404. The Court found, moreover, that this statement "was not merely an expression of his opinion," id. at 404, and that it "does not negate other portions of the writing," id. at 404, and that as a result "the jury was entitled to conclude [the statements] were the equivalent of imputing a crime to the [plaintiffs]." Id. at 404.
The defamatory statements complained of in the defendants' book also suffer the same problems as those statements made by John Ramsey on television. For example, the defendants make it perfectly clear to the reader that they have hired private investigators who, over a period of three years, conducted their own investigation into the murder of their daughter. The book is even advertised as containing the "results" of the Ramseys' investigation, with a "profile" of "the killer" featured in Chapter 33 "The Murderer." However, the results of their investigation, and the facts upon which they base their statements, remain largely undisclosed to the reader, who is left to draw his own conclusions as to what is "fact" and what is "opinion," with no idea of how much is drawn from, and based upon, the "secret" investigative files of the Ramseys.
On page 329 of their book, for example, the Ramseys state that they "had reported more information on Chris Wolf to the authorities" without revealing to the reader the nature of what that "information" consisted, while stating on page 205 of their book that "whatever the police's intentions, Wolf went on our suspect list. He represented too many unanswered questions." The Ramseys make this latter statement, moreover, only after devoting passages of their book to describing their own investigation into their daughter's murder. See, e.g., ("Our attorneys contacted John Douglas, the world's leading crime profiler and former FBI agent. He agreed to meet with us and our investigators."D.O.I. at p. 108); see also ("Our investigators tried to sift out what was going on inside the Boulder police department. We were giving our leads and follow-up information to the police." D.O.I. at p. 109).
Defendants' counsel is uniquely aware of the implications of including Chris Wolf in the Ramseys' list of "suspects," having appeared as plaintiff's counsel for Richard Jewell, who was falsely identified as a suspect in the terrorist bombing of the Olympic games in 1996, in the case of Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, (S.D.N.Y., 1998). The court in that case observed that "Although the net cast by a criminal profile may well capture a number of innocent people, that fact does not change the damaging impact on the innocents snared....a person who fits the profile is identified as someone who may have been involved in a criminal act. Such a false accusation is not without its sting or pain." Id. at 364. See Levin v. McPhee, 119 F. 3d at 195 (statement implicating someone in a murder, even though such an implication appeared "among conflicting and speculative versions of an unresolved mystery," was capable of a defamatory meaning and motion to dismiss was properly denied.)
John and Patsy Ramsey's statements, on television and in their book, are laden with innuendo and suggestions that the plaintiff Chris Wolf was a legitimate murder suspect. In order to support their case against the plaintiff, they "republish" the initial libel and slander of Wolf's girlfriend, which she originally made to the Boulder authorities. Jacqueline Dilson's statements were so clearly the product of a disturbed individual with a hidden domestic agenda that it is preposterous that the Ramseys could even consider claiming that they "reasonably relied" on her statements for their investigation of Chris Wolf as a suspect. "Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact." Milkovich v. Lorain Journal Co., 497 U.S. 1 at 18-19.
C. The Defendants Knowingly Made False Statements
In order to be actionable, mixed statements of opinion and fact must not only imply an assertion of undisclosed facts, but must also be capable of being proven false. See Jaillett v. Georgia Television, 238 Ga. App. 885, 890, 520 S.E. 2d 721, 725-26 (1999); Eidson v. Berry, 202 Ga. App. 587, 587-88, 415 S.E.2d 16, 17 (1992).
The undisclosed "fact" implied in the defendants' statements is the most obvious one: "There is evidence in our possession proving that Chris Wolf murdered our daughter." The exact nature of that "evidence," however, is never revealed, either to the television audience, or to the general reader. There are only veiled references to the information provided by the Ramseys' private investigators who, apparently, are attempting to work diligently, hand-in-hand, with unidentified Boulder "authorities."
However, there is compelling evidence in the form of handwriting reports and affidavits by forensic document examiners, attached as "Exhibit 1" to the plaintiff's amended complaint, showing that Patsy Ramsey is the ransom note writer. The mere fact that Patsy Ramsey wrote the ransom note, if proven by clear and convincing evidence to a jury, would be sufficient to establish as false the statement that Chris Wolf "represented too many unanswered questions," or that there was any basis for the Ramseys to have "reported more information on Chris Wolf to the authorities, " or any reason why "Wolf went on our suspect list," and certainly no conceivable basis for John Ramsey's remark that "This is it. This is the killer."
Arguably, Patsy Ramsey's authorship of the ransom note would be legally sufficient proof to meet the "actual malice" requirement that she had the necessary "intent" to knowingly publish false statements about Chris Wolf. If John and Patsy Ramsey both know she is the ransom note writer, then, by definition, they have made provably false statements about the plaintiff with "constitutional malice."
"If a public figure proves by clear and convincing evidence that the defendant published with the purpose or design of communicating a false and defamatory, albeit implied statement, the plaintiff should be able to maintain a cause of action and recover for the resulting harm. Such a predicate to legal responsibility of the publisher in a public figure case is fully consistent with the promise of New York Times and its progeny. The Court in New York Times did not promise absolute immunity; it fashioned a qualified privilege. Calculated falsehood, in the form of the deliberate lie, is not protected by the First Amendment." C. Thomas Dienes & Lee Levine, Implied Libel, Defamatory Meaning and State of Mind: The Promise of New York Times Co. v. Sullivan, 78 Iowa L. Rev. 237, 311(1993)
D. Defendants' Statements Are Directed "to" the Plaintiff
The defendants argue that because their remarks are not directed to the plaintiff they are, therefore, somehow not actionable as intentional infliction of emotional distress. They conveniently ignore the fact that it is the defendants' conduct in hiring private investigators to intrusively probe into the life of Chris Wolf for the purposes of subjecting him to police scrutiny as a murder suspect, which is the gravaman of the plaintiff's complaint for intentional (reckless) infliction of emotional distress.
Instead, most of the defendants' argument is devoted to recitals of black letter law, with little discussion of whether or not the hiring of private detectives to "pin" a murder "rap" on the plaintiff is actionably "outrageous" conduct directed to the plaintiff. Because there are so few millionaire murder suspects such as the Ramseys still "at large," who have devoted a substantial portion of their fortune and their time to "investigating" the private lives of people like Chris Wolf, in the hope of diverting suspicion away from themselves, this case remains one of "first impression" with respect to the conduct complained of by the plaintiff. There is no Georgia case law on point, and so the inquiry must of necessity remain "fact intensive" for the court's decision.
The defendants cite the cases of Lively v. McDaniel, 240 Ga. App. 132, 522 S.E. 2d 711 (1999) and Munoz v. American Lawyer Media, L.P., 236 Ga. App. 462, 512 S.E. 2d 347 (1999) for the proposition that statements made to the Boulder authorities in the form of investigative files by private detectives were directed to the public, and not to the plaintiff, even though this conduct led directly to Chris Wolf being re-interviewed by the police in March of 1999 during the grand jury investigation (Chris Wolf was never called before the grand jury.)
The plaintiff contends that if the conduct of the Ramseys in trying to implicate him in the horrific sexual assault and murder of a six-year girl, in a case which has received enormous international press attention, doesn't rise to the level of "extreme and outrageous" conduct, then what does? If not him, then who can ever bring a claim of intentional (reckless) infliction of emotional distress?
For the foregoing reasons, the defendants' Motion to Dismiss should be denied, or in the alternative, the plaintiff should be allowed to amend his Complaint.
This 2nd Day of August, 2000
Attorneys for Plaintiff