Burden of Proof - Monday, October 11, 1999

Burden of proof 10/11/99
Posted by Borglet on Oct-11-99 at 06:42 PM (EST)

Burden of Proof
Boulder Grand Jury Winds Down Work in JonBenet
Ramsey Murder Case as Prosecutors Solicit Expertise
From a Leading Forensic Scientist

Aired October 11, 1999 - 12:30 p.m. ET


JOHN RAMSEY, JONBENET RAMSEY'S FATHER: ...note that said our daughter has been kidnapped. We have your daughter. We want money. You give us the money, she'll be safely returned.

PATSY RAMSEY, JONBENET RAMSEY'S MOTHER: It sounded like kidnapping to me.

CHARLES ZEWE, CNN CORRESPONDENT: Are the Ramseys still a focus of this investigation, or have they been elevated to the status of suspects?

MARK BECKNER, BOULDER POLICE DEPT.: Well, as you know, we have not named suspects in this case, and we're going to continue to maintain that. What I will say is, you know, we have an umbrella of suspicion and people have come and gone under that umbrella. They do remain under an umbrella of suspicion, but we're not ready to name any suspects.

ALEX HUNTER, BOULDER COUNTY DISTRICT ATTY: And this case, that you all know, is a very difficult one, and my faith in the process has never been shaken. I have terrific confidence in this grand jury. I have terrific confidence in the people that are working with me on this case.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF, a Boulder grand jury winds down its work in the JonBenet Ramsey murder case, and prosecutors, again, solicit the expertise from a leading forensic scientist.

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Nearly three years after the murder of JonBenet Ramsey, a grand jury in preparing to wrap up its probe of the case. Jurors will meet again tomorrow, and their term ends a week from Wednesday.

ROGER COSSACK, CO-HOST: On Saturday, forensic scientist Henry Lee travelled to Boulder to meet with prosecutors. Dr. Lee was a prominent witness in the criminal trial of O.J. Simpson. It's not the first time he's advised the Boulder County DA's office.


HUNTER: I'm thankful that I've had advisers. There's been more oversight in this case -- and I think the public has deserved that -- than any case, I think, probably, in the country. These four metro (ph) DAs are good men. They've stood by my side through this case, as tough as you all know it's been, and I respect them tremendously for it. I'm sorry that Bill Ritter is on his back because I'd like to think that, as we finish this phase -- and let me underline phase -- of the process, that he's going to be on his back, because he's been a great help, as has Bob Grant and Tom St. Peters (ph).


VAN SUSTEREN: Joining us today from Denver is KOA Radio anchor April Zesbaugh. And also in Denver, former Denver Chief Deputy District Attorney Craig Silverman.

COSSACK: And joining us here in Washington are Bonnie Hamilton (ph), criminal defense attorney Bernard Grimm and Matthew Nordan (ph). And in the back, Bonnie Overton (ph) and Brian Jones (ph).

And joining us on the phone is Adams County District Attorney Bob Grant.

Well, Bob, has any of the umbrella-of-suspicion suspects -- have any of them been eliminated from the grand jury's consideration?

BOB GRANT, ADAMS COUNTY DISTRICT ATTY: You know, one of the things about a grand jury is they -- at this stage of an investigative grand jury, they do whatever the heck they want to do. So they are considering all of the evidence, all of the individuals who they've heard about, and, I'm sure, piecing through the evidence in a very meticulous fashion.

COSSACK: Well, Bob, usually we know that prosecutors usually guide the grand jury, a prosecutors usually -- often times tell the grand jury what to do and what not to do. Why should we suspect that this grand jury is any different?

GRANT: Well, you know, some of that is myth, some of it that is reality, but the fact of the matter is, nobody ever has the control they think they have. Grand jury is citizens that come off the street. They have, now, complete control of the case. They've had it for a long while. The prosecutors are there as their guide, you bet, but they don't dictate, the grand jury dictates.

VAN SUSTEREN: Bob, you're a man of good judgment, lots of prosecutorial experience and very close to this investigation: Do you anticipate there will be justice in this case in the very near future?

GRANT: Well, you know, folks have been working a long time and it's been a long, hard road. Justice will come in this case. The grand jury will tell us how quickly.

VAN SUSTEREN: But when I say quickly, do you expect that there'll be justice for JonBenet Ramsey within the next two or three or four months, that there'll actually be a trial and that we'll search for whoever is the killer in this case?

GRANT: No, obviously what you're asking, Greta, is for a prediction on what the grand jury is going to do, whether they'll indict or not indict. I'm not in the predicting game. I won't do that I know that the people who are involved in this case, the investigators, the DAs, are going to continue to work hard on the case whether there's an indictment or not.

COSSACK: Bob, let's -- I know you're not in the predicting business, but let me see if I can get you into the hypothetical business. Let's assume that there is not an indictment coming down -- and, again, we don't know and I'm not asking you to predict. Would you think, though, that the investigation then would continue?

GRANT: No question about it. If there's no indictment, that doesn't mean that the case is over. Clearly, the resources that have been thrown into the case will scale down a bit, is my guess. The grand jury will no longer be involved, if there's no indictment, but the police investigators, the DA staff that's been involved in the case, will continue to focus on it and continue to move towards the resolution and justice.

VAN SUSTEREN: Bob, why has it taken so many months and, for the grand jury, almost a year to at least finish their business, whether it be an indictment or no indictment, and we had this long delay in the summer when they didn't meet? What is the procedural impediment to moving this case through faster?

GRANT: Well, you know, cases are fed by evidence and not by speculation or rumor. What a grand jury does -- an investigative grand jury uses its power. Its power has to do with the confidentiality, and its power has to do with the subpoena. If evidence is developed, if information is developed by the use of the subpoena and the confidentiality provisions, then investigators fan out and follow-up on that information.

The time that the grand jury has been off has not been time where the investigation has been off. The investigation has been ongoing since December of 1996. And what the grand jury develops, the investigators follow through with.

VAN SUSTEREN: Well, let me follow-up with a question on that. It seems rather curious: We're told that the meeting between Dr. Lee and Alex Hunter was one that was planned for a long time out in Boulder, the one that occurred over the weekend, yet our information is Dr. Lee did not testify before the grand jury over the weekend. What do you -- what are we to make of the fact that the prosecutor's meeting with Dr. Lee on the side and not -- Dr. Lee is not meeting, currently, with the grand jury?

GRANT: Well, the grand jury is not in session on weekends and court holidays. That's what's been going on the last three days. Today is a day off in the state of Colorado for Columbus Day. Whenever you have an opportunity to meet with, to pick the brain of, to get the expertise of a man of the integrity and vision and experience of Henry Lee, you take it. Clearly, whatever happens in this case, with this grand jury, Dr. Henry Lee and his vision is going to be important to the ongoing process. So, of course you take whatever opportunity you can to meet with a guy like Henry Lee.

COSSACK: All right. April Zesbaugh, it seems a little strange, Bob Grant has pointed out, you always want to use the vision of Dr. Henry Lee, but yet he was never asked to testify before the grand jury. Any reasons?

APRIL ZESBAUGH, KOA RADIO: Good question. I don't know the answer to that, but I think we can take what we got in an interview with Dr. Henry Lee a couple of weeks ago and take this for a kernel of knowledge, anyway.

Two weeks ago, he said the grand jury did not have enough forensic evidence to make an indictment in this case, and he said they need to go back to work and finish their work on this and get the forensic evidence that they need in order to pass on a decision with any clarity.

And so I wonder what different information he has two weeks later, what he could have possibly told Alex Hunter yesterday and over the weekend: that maybe, possibly, he thinks, now, they do have the evidence? I don't know. It's up to anybody's speculation.

VAN SUSTEREN: Craig, typically, grand juries are extensions of prosecutors. We cynical defense attorneys always say that a grand jury does exactly what the prosecutor wants. But I am told that grand juries are not often used in the state of Colorado and that this -- therefore, this one may be of greater independence than your typical grand jury. What is your experience? Is this grand jury running itself, or is the prosecutor running it?

CRAIG SILVERMAN, FMR. DENVER CHIEF DEPUTY DA: You know, grand juries have great power, but it's sort of like a lay person going to a doctor: If you go to a doctor and the doctor gives you his best medical opinion, most of us take that advice. Maybe we get a second opinion. These are all lay people. That's why they rely on the prosecutors who, presumably, have the experience.

But it seems to me that a scenario like this might have unfolded: Alex Hunter was hoping that there would not be a vote and would have thanked the grand jury for its hard work and told them that they would build upon this hard work. But the grand jury realized its power -- understand they could be watching this show right now. They're not like a trial jury -- and they've exercised that power, and they've told Alex Hunter and his staff: We're going to take a vote, we're going to vote up or down. And there was a big surprise this past Friday when they decided to come back on Tuesday. It increased the odds of an indictment dramatically.

COSSACK: All right, let's take a break.

Bob Grant, thank you for joining us today.

Up next, the term of the grand jury investigating the murder of JonBenet Ramsey ends next week, but will a suspect be indicted by then? Stay with us.


Sunday in California, Gov. Gray Davis vetoed a bill ordering a study of the cost and benefits of the state's three-strikes prison sentencing law. California's controversial law requires terms of 25 years to life for a third felony conviction.




P. RAMSEY: I dialed the police, and 911, and she was trying to calm me down, and I said our child had been kidnapped, and you know, she was trying to very methodically, and I was just screaming, you know, send help, send help.


COSSACK: It has been nearly three years since the body of six- year-old JonBenet Ramsey was found in the basement of her family home. A Boulder grand jury has been investigating her death for more than a year. Its term ends in just ten days.

Well, Craig, before the break you said a very interesting thing. You implied that you think there is going to be an indictment in this case, is that what i heard you say?

SILVERMAN: No, I said that the odds of it dramatically increased.

COSSACK: Why? Why would the odds dramatically increase and why would we even think that?

SILVERMAN: Well, Alex Hunter told the media on Friday to be alert over the weekend. He had promised the national media, folks like you, 48-hours' advance notice. Most of us logically inferred that he was therefore, over the weekend, announce a press conference on Tuesday. That afternoon, after we were told that the grand jury was ending their meetings on Friday, we were informed that the media would not get an announcement over the weekend, instead the grand jury was coming back on Tuesday. As well there have been reports that they are meeting without the prosecutors, which can only mean one thing, deliberations.

VAN SUSTEREN: Bernie, all of this that was speculation, some of us can be very wrong, when we finally this does end, about whether or not there is an indictment or no indictment, because you can't guess what goes on in a grand jury room. But let me do this: Let me ask you to guess what's going on in the defense lawyer's office? I mean what are the defense lawyers going through at this stage?

BERNARD GRIMM, CRIMINAL DEFENSE ATTORNEY: Any defense lawyer always has to prepare for the worst, so you are gearing up for an indictment, a media blitz on you and your clients and an arraignment.

VAN SUSTEREN: If you were representing, for instance, the Ramseys, who have not been -- they are only under this umbrella of suspicion, because they were in the house -- if you were the Ramseys' lawyer, is there anything in particular that you would be doing? Would you be giving any advice to the Ramseys at this stage?

GRIMM: Obviously, you be advising your clients to keep their mouth shut, but, in particular, what I would doing, is I would be interested in what Dr. Lee is doing there, and, two, I would obviously be hiring my own expert to look at, probably, what I think Dr. Lee is probably looking at; he's here to give the grand jury an explanation of what the DNA that was found in her undergarments and underneath her fingernails that does not match the Ramseys. It is, perhaps, a third person, or perhaps can be explained what that is doing there. You will need an expert on that to go against Dr. Lee.

COSSACK: April, are there any other suspects who have emerged as, if you will, leading suspects, other than the Ramseys?

ZESBAUGH: I think, as Alex Hunter said, and Mark Beckner from the police department, the parents, the family, are under the veil of suspicion in this case, the umbrella of suspicion. And, you know, people have come and gone. There have been some weird folks, as you know, in this bizarre case in the last three years that have poked up and been in the public's eye, but nobody who has really stayed around and has hung around as real, solid suspect for the intruder theory. So, right now, you have got to wonder who all they are going to be looking at, if there is an indictment coming down in this case.

VAN SUSTEREN: April, have their been any sightings? Do we know where the Ramseys are these past few weeks?

ZESBAUGH: They're still remaining in Atlanta and, we understand, if there is going to be an indictment, and if the Ramsey family, if John or Patsy is named in that indictment, we understand that there is a mechanism in place where they would come to Boulder, post bail and head back to Atlanta, that it would be a very, very quick process and there wouldn't be -- so there wouldn't be the media speculation and the media circus that there has been throughout this case.

VAN SUSTEREN: April, I assume that the media has been all over the Boulder courthouse. What about the lawyer's offices? Is the media following the defense lawyers in this case?

ZESBAUGH: You can bet the media is staked out absolutely everywhere in this case, not only the Justice Center, the lawyer's office, even though Alex Hunter hasn't been talking throughout this case. His house and law offices are probably also being staked out, as well as the Ramsey family home in Atlanta.

We have a sister station out there from KOA-WGST in Atlanta, and certainly there is media staked out at their house waiting for any sign of movement, that somebody there could be possibly be indicted.

COSSACK: Craig, April says that there is a process in place in which the Ramseys could come to Denver and post bail in a murder case? I've never -- since when do you post bail in a first degree murder case.

SILVERMAN: Very unusual. Alex Hunter though is an unusual prosecutor. Here in Colorado, there might be a tactical reason not to charge, not to ask for no bond. If they do that, they are entitled to a hearing called a proof evident presumption great hearing.

As you know, with a grand jury indictment, you obviate the need for a preliminary hearing. But, if you want to hold them without bail you have to give them a hearing, proof evident presumption great means more than probable cause but less than proof beyond a reasonable doubt, and unless a prosecutor can satisfy a judge that that kind of evidence exists, they can't be held without bond.

COSSACK: But what does it say about their case if they're afraid to put on one of those kinds of hearings?

VAN SUSTEREN: Yes, well, they may be afraid to put on one of these hearings, but I assume, Craig, that Colorado is no different than any other state, that whoever is charged in this case is entitled to some information, what we call reverse discovery. I mean, they are going to have to turn over information at some point.

SILVERMAN: Oh, absolutely.

COSSACK: And a speedy trial, Craig? How fast do they have to take them to trial?

SILVERMAN: Here's what will happen, is they're entitled to have a judge review the transcripts of the grand jury proceedings and decide was there really probable cause. Then they have to enter a plea. Once they enter a plea of not guilty, the prosecution has six months to put them on trial.

VAN SUSTEREN: Bernie, how often do defendants want a speedy trial? We always threaten it as defense lawyers, but...

GRIMM: We always ask for a speedy trial for a lot of pro forma reasons and obviously to have the statute kick in, but in a case like this, you are behind the eight-ball. You don't know what the state knows, so you are probably going to waive the speedy trial and have a trial beyond the six months time. The occasions where you want speedy trials is where your clients are locked up.

VAN SUSTEREN: And the truth is, one of the reasons why defense lawyers and defendants don't want a speedy trial, because sometimes, over time, witnesses forget things, or they may move away or disappear or for whatever reason.

GRIMM: Time benefits the defendant all the time.

COSSACK: You know, I would suspect, in this case, that if the Ramseys get indicted, they will be looking for a speedy trial in this case. Because I just think...

VAN SUSTEREN: You know why not?


VAN SUSTEREN: Because unlike the Simpson case, where they made a demand for the speedy trial and forced the prosecutors to investigate the case while they were trying it, in this particular case the prosecutors have had a three year jump, in terms of investigating on the defense. So, I actually think, in this case, they would rather drag it out, and not do like in the Simpson case.

COSSACK: I would agree with you normally, it just seems like they're real tenuous in this whole process, and I think that, if I was the defense lawyer, I would be looking for a quick trial on this one.

VAN SUSTEREN: Not me. But, we need to take a break. And, when we come back, a change in focus to Laramie, Wyoming, where the trial begins for a suspect in the killing of a gay college student.

Stay with us.



Q: What witness in the O.J. Simpson criminal trial settled a libel lawsuit with the National Examiner?

A: Brian "Kato" Kaelin regarding an article titled "Cops Think Kato Did It!"


VAN SUSTEREN: This morning in Laramie, Wyoming, jury selection began in the trial of a second suspect in the killing of a gay college student. Twenty-two-year-old Aaron McKinney is being tried for first- degree murder, kidnapping and aggravated robbery. If convicted, he could receive the death penalty.

Joining us now from Laramie is CNN correspondent Don Knapp.

Don, what is going on in the courthouse now in the trial of this man, Aaron McKinney?

DON KNAPP, CNN CORRESPONDENT: Well, in Judge Barton Voigt's courtroom, they are still questioning jurors. They have four panels of some 64 prospective jurors that they've called. It should take about two weeks to get through all of them before the October 25th trial begins.

We understand -- we just had a briefing a few minutes ago -- and about eight prospective jurors have already been dismissed. The reasons offered ranged, they were various, but some people did say that they were concerned about impartiality, about whether or not they could vote for the death penalty, about whether or not they could be fair. The judge has said to some of them, he said, if passion, prejudice or an agenda is an issue with you, you cannot serve on the jury.

VAN SUSTEREN: Dun, Russell Henderson was another co-defendant, and he was supposed to have been tried last April. Instead, he pled guilty, got two consecutive life sentences. In exchange, they lifted the death penalty that they were seeking against him. Will there likely be a plea in this case. If not, why not?

KNAPP: Well, we have heard that there will not be, and that is because police feel that Aaron McKinney is an instigator -- was an instigator in the murder of Matthew Shepard, and so they really want to go after him, they have not offered him a plea, and so it looks like there will be a trial.

COSSACK: Bernie, how do you go about defending someone like this? There's been incredible prejudicial -- pre-trial publicity. How do you go about finding jurors that will try and put these things out of their mind?

GRIMM: It's especially difficult in this case, because you have a city that's not huge, in terms of numbers, so everyone who lives there must know about it. On the other hand, during jury selection, the state's entitled to get what's called a death-qualified jury, which means they're entitled to get 12 people who would vote the death penalty. That's a problem for defense lawyers, because implied within jury selection is that your client is guilty and this is really just a trial about life in prison or death.

VAN SUSTEREN: Bernie, though, in this situation, as a defense attorney, if you think your client's going to get convicted and you want to get the death penalty lifted, you want to plea, the prosecutor says, no, he's the instigator, what do you do?

GRIMM: You don't have a -- you don't have a choice. You would probably, in the penalty phase, have the client testify that he begged for a plea prior to trial and told the jury he's willing to do life sentences, just like his co-defendant.

VAN SUSTEREN: All right. Well, that's all the time we have time for now. Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE," New York's viral outbreak: where did it originate? That's at 3:00 p.m. Eastern Time.

COSSACK: And we'll be back, tomorrow, with another edition of BURDEN OF PROOF. We'll see you then.