Burden of Proof JonBenet Ramsey Case:
The Grand Jury and the Problem of DNA Evidence
Aired October 12, 1999 - 12:30 p.m. ET



PATSY RAMSEY, JONBENET RAMSEY'S MOTHER: If anyone knows anything, please, please help us. For the safety of all of the children, we have to find out who did this.

UNIDENTIFIED MALE: I believe it has taken too long. It's something that I think, in this instance, justice may fall through the cracks because of -- because of it.

UNIDENTIFIED FEMALE: Definitely. It's taken way too long.

CHRISTOPHER MUELLER, LAW PROFESSOR: I think, probably, the length of time that the grand jury has spent on this case and the care that the prosecutor took in presenting the case to the grand jury do suggest that it's a very difficult case.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, a prosecutor working on the JonBenet Ramsey case says the victim's parents are a target of a Boulder grand jury investigation. As those jurors prepare to end their civic duty, DNA evidence could be a crucial element in their decision.

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

COSSACK: Hello and welcome to BURDEN OF PROOF.

A grand jury reconvened, this morning, in the Boulder Justice Center in an attempt to wrap up its investigation of a 1996 homicide. That crime was once touted by prosecutors as the only murder in Boulder County for the entire year. The victim: six-year-old JonBenet Ramsey.

GRETA VAN SUSTEREN, CO-HOST: Nearly three years later, the killer of JonBenet still walks free. As the grand jury prepares to end its year-long investigation, county officials are gearing up for a media onslaught in their Colorado community. A decision from the citizens seated on the grand jury panel could be handed down at any time.

COSSACK: Joining us today from Boulder, Colorado, is criminal defense attorney Peter Schild. In New York, criminal defense attorney and DNA expert Harlan Levy.

VAN SUSTEREN: And here in Washington, Michael Harmon (ph), Mark Stolorow of Cellmark Diagnostics and Brian Jones (ph). And in our back row, Kay Henry (ph) and Nolen Gertz (ph).

And also joining us from Boulder, today, is CNN correspondent Greg LaMotte.

Greg, you've been at the courthouse all day. What have you seen today, so far?

GREG LAMOTTE, CNN CORRESPONDENT: Well, so far, Greta, this is the greatest level of activity that we've ever seen around the Justice Center. There are increasing signs that this grand jury investigating the death of JonBenet Ramsey is about to conclude.

Early this morning, for instance, the county was out posting signs in the parking lot, where the media parks, telling us where we can park. There's also signs being posted telling us where we cannot go. In fact, there is a media-free zone now on the sidewalk that leads into the building for the grand jurors; that's where they walk. That media-free zone has never existed until today.

Also, some sources close to the investigation have been telling CNN that the grand juror's decision regarding whether there will be indictments could come as early as today and probably no later than tomorrow.

VAN SUSTEREN: Peter, to contrast for us, for a second, since you practice law there -- you drove past the Justice Center today -- how does it look to you in terms of any different than any other day?

PETER SCHILD, CRIMINAL DEFENSE ATTORNEY: Well, parking is always hard to find at the Justice Center, and today it's impossible. Pretty much half of the parking lot is filled with a cacophony of broadcast vans and trucks. It's nothing I've ever seen before.

COSSACK: Peter, how unusual is it at all -- you practice law in the area -- for a grand jury to convene and to make these kinds of decisions in Boulder?

SCHILD: It's very, very unusual. I've practiced here for several decades, and generally the grand jury is used as little as possible.

COSSACK: Why would you, then -- why would you think in this case, though, with all the uncertainties or at least the fact that it's gone on so long, that a grand jury was called in?

SCHILD: Well, I think that what the prosecution needed was to pinpoint evidence, and get documentation and have tests done that maybe couldn't be obtained without subpoena power and without compelling witnesses to testify under oath. VAN SUSTEREN: Greg, are there any plans by Alex Hunter's office to make any statements that would indicate anything is likely to happen, today, as opposed to tomorrow or next week?

LAMOTTE: Well, nothing that would indicate necessarily today or tomorrow or next week, but for instance, Suzanne Laurion, who is his media spokesperson, I talked with her this morning. She was going to go inside and meet with Alex Hunter for a short while to go over some press releases. These press releases would address varying scenarios of how this grand jury might ultimately decide.

COSSACK: Peter, is there a mood change in Boulder? Have you sensed that people have a different opinion on this case than when it first started?

SCHILD: Well, certainly. I think that when the case first started everybody expected a break within a few weeks and then within a few months. And as the case has gone on, I think that people have become more aware that it's a very difficult case, that there are problems in proving the case and that deliberate speed is probably the best alternative here.

VAN SUSTEREN: Peter, you say that there are problems improving the case, but the grand jury doesn't need proof beyond a reasonable doubt in order to return charges. In this particular case, isn't that true?

SCHILD: That's true. However, if the grand jury, in its investigation, comes up with what one might call a medium-warm case, why then the prosecutor stands a real chance of losing it at trial.

VAN SUSTEREN: But does the prosecutor actually say to the grand jury, look, I think this is medium warm, I don't want you to take a vote, or does the grand jury have an independent function in Colorado they say: Look, our duty is to find out there's enough to charge; it's your problem whether to convict?

SCHILD: Well, I think that certainly the grand jury has the last say, but they don't even know how to draft an indictment, and they would need the prosecutor's help in all of the paperwork. So, given the length of time that these two bodies have been together, I think they've developed quite a relationship, and they'll probably listen to each other closely.

COSSACK: Peter, what's the politics involved in this? Is this a situation where Alex Hunter would be concerned about his job if he doesn't come up with an indictment?

SCHILD: I don't think so at all. I think that, first of all, there's a real question as to whether he's ever going to run again. He's been in this job for quite a bit longer than most world leaders. Secondly, I think that in the legal community everybody thinks that what he's doing is appropriate and pretty much the only way to go, given all of the facts and circumstances.

VAN SUSTEREN: Greg, there's obviously a media onslaught at the Judicial Center, and we're all on pins and needles waiting to see what happens, but in terms of the grand jury, are they actually hearing from witnesses today? Have you seen witnesses come and go? Do we know if they have, you know, TV monitors being pushed into the room? Do we have any clue what they're doing?

LAMOTTE: Actually, we were told by Adams County District Attorney Bob Grant on -- yesterday, actually, that he described what they were doing last Friday and what they're going to be doing today is deliberating. I asked him, well, I said, well, that sounds like they're talking about possible indictments. He says, well, deliberation means deliberation, which means they could be deliberating about filing a report, for instance, on their activity. So, it's kind of up in the air as to exactly what they're doing, but it's our understanding they are not hearing from witness, today.

COSSACK: Greg, where -- have you heard information that you suspect that it's going to be today or tomorrow?

LAMOTTE: We have heard information that we suspect that it could be late, today, and if not late, today, then sometime early tomorrow.

VAN SUSTEREN: All right. Thanks to CNN's Greg LaMotte, who's at the Justice Center in Boulder, Colorado, and I'm sure that Greg will keep us posted as events unravel in Boulder. But we need to take a break.

Up next: the advances of DNA technology. Has forensic science forged a foundation for prosecuting this case or just made it more complicated? Stay with us.


The JonBenet Ramsey murder investigation is the most expensive probe in Boulder's history, costing the city's police department $1.382,701.



VAN SUSTEREN: During the last 13 months, Boulder County prosecutors have presented more than 30,000 pieces of evidence to the grand jury. As much of the evidence relates to forensic science, leading expert Dr. Henry Lee has been commissioned to advise the District Attorney's Office. This morning on ABC's "Good Morning America," Dr. Lee said, quote, "This case has some inherent issues and problems ... It's more likely today or tomorrow there's some decision."

Mark, before we dissect what Dr. Henry Lee has to say, let me ask you about DNA. If they find some substance in either in her underwear, in JonBenet's underwear, or under her fingernails, can the -- as a DNA expert, can you tell whether that is a mixture or whether that's contaminated DNA?

Oh, let me interrupt you for one second, we're going to go to Bernie Shaw in Washington who has some news -- Bernie?



VAN SUSTEREN: Welcome back. We're continuing our discussion of the JonBenet Ramsey case and the discussion about DNA.

Mark, you work for Cellmark and Cellmark has been involved in this case so you can't discuss the actual facts in this case, so I'm going to make you our resident scholar. Tell me: What's the difference between a mixture and a contaminated DNA sample?

MARK STOLOROW, CELLMARK DIAGNOSTICS: Both a mixture and a contamination would appear in the DNA laboratory indistinguishable. We refer to a mixture as activity that results from criminal event where DNA from more than one person is mixed together. That mixture exists as evidence and it has some value in terms of evidence.

A contamination is an event that we usually refer to in the laboratory as the inadvertent application of DNA from some unexpected source to the evidence, either prior to the crime taking place, after the crime has taken place, in the collection of the evidence, or during the process in preparation for the testing.

So, contamination is an untoward event which is usually preventable and a mixture is simply the consequence of criminal activity in which DNA from more than one person is mixed together.

VAN SUSTEREN: So if I have a homicide case and I'm looking at some DNA and it's not the victim's and I don't know who the perpetrator is, I don't know if it could be a mixture, contaminated, or a good sample DNA of the murderer, is that fair to say?

STOLOROW: That's right, Greta.

COSSACK: Harlan Levy, has there been any advances in the analysis of DNA which -- or the ability to analyze DNA which would make it somewhat easier today than it was, perhaps, five years ago in the Simpson case?

HARLAN LEVY, DNA EXPERT AND CRIMINAL DEFENSE: Well, the biggest development, in terms of DNA analysis over the last several years, Roger, has been increasing sensitivity. It's been the ability to get more and more information from smaller and smaller amounts of DNA. So here you have a mixture from JonBenet Ramsey's underwear where they're able to pick up both the DNA that's her DNA and the DNA that's that of another person. That ability...

VAN SUSTEREN: But that's the question, Harlan -- let me ask that, because -- and I know Mark can't go into the details, but -- so let me ask you: Does that necessarily mean that there's somebody's DNA, or could that necessarily be some contamination or be a family member who she come in often contact with on normal circumstances? I mean, does it really suggest another, you know -- a killer? LEVY: It's all a question of how it got there and we don't know how it got there. We weren't there to see how it got there. They can test the various people who handled the DNA, they can see if their DNA might have inadvertently gotten in there, they can test the DNA of every possible suspect. But at the end of the day, you don't know how it got there.

VAN SUSTEREN: So it does -- so it's not fatal to an indictment if you have some mysterious DNA, necessarily?

LEVY: If it's ultimately unaccounted for, if they can't say that this DNA is consistent with that of somebody in the lab who might have coughed on the crime scene sample, if you don't have some way to explain it, then it's a tremendous piece of evidence for any defense lawyer to work with in saying...

VAN SUSTEREN: Other than that it could be contaminated by its collection.

LEVY: Well, but the other -- it could be, but it also could be the DNA of the true killer. And so it's going to be a big impediment to an indictment today.
COSSACK: Mark, you know, we talk about this contaminated DNA: How easy is it, or how difficult is it, to have contaminated DNA? Is it something that's more fiction than fact or the other way around?

STOLOROW: With the degree of sensitivity that we have in the way small samples are tested in the laboratory, it's possible, very possible, that inadvertent administration or deposit of DNA from the person who is collecting the evidence, or the person transporting the evidence, and for the person from whom the evidence was collected to have contacted someone else before the crime occurred -- is something that is a very real possibility and has to be dealt with a great deal of care by the police and by the laboratories.

COSSACK: When you say contacted someone else, I mean, what exactly do you mean? For example, if I would touch Greta's hand, you know -- and gosh knows, I won't -- but suppose I take -- would I have her DNA on my hand, I mean, or would it have to be something that would require more than just something simple like that?

STOLOROW: We know that events like this can produce a contaminating event. We also know that, in many cases, that's not possible. When we're looking for cells that are sloughed from people's perspiration and fingertips, they may grab an envelope and one person may leave enough DNA to be detected; the next five people may grab an envelope and leave no DNA to be detected.

VAN SUSTEREN: And let's not forget that this child was transported from the basement to upstairs and probably -- maybe more than her father touched her at that point.

But let me go back to Peter before we run out of time.

Peter, the grand jury, if it decides not to indict, can write a report. What can we see -- what can you expect to see in a report?

SCHILD: Well, generally, the grand jury submits one of two documents: either a true bill of indictment, which is the charge, or no true bill. If there is no true bill, no indictment, then the law allows the grand jury to write a report, if they follow through with some requirements, including certifying that it's a public necessity that the report be issued.

The law requires that the report be given to all of the people that are involved in the investigation for their comments and then submitted to the court. That's, at a minimum, about a 20-day process. And then the judge sits on the report and decides whether everything's been complied with and whether it should be issued.

So just because the grand jury decides to write a report, doesn't mean that the public will ever see the report.

COSSACK: And what does it mean whether the public sees the report? Does the judge, then, have to certify that the people who have responded had adequate time to respond? I mean, what decision does this judge have to make?

SCHILD: Well, basically, the judge has to decide whether it's in the public interest that the report be read by the public. I think that's really the bottom line.

VAN SUSTEREN: Harlan -- let me ask Harlan.

Harlan, could you ever see this being in the public interest in an ongoing investigation?

LEVY: No, this doesn't strike me as the kind of case that's appropriate for a grand jury report. We usually expect a grand jury report in a matter that had some broad public importance, say negligent homicide by a hospital where the hospital should change its procedures, a fundamental failing in the political process. This does not strike me like a case that is appropriate for a grand jury report.

COSSACK: All right, that's all the time we have for today. Thanks to our guests and thank you for joining us.

Today on "TALKBACK LIVE," the six-billionth person is born: The problems with earth's population growth. That's at 3:00 p.m. Eastern time.

VAN SUSTEREN: We'll continue to follow developments in the JonBenet Ramsey case, and we'll be back tomorrow with another edition of BURDEN OF PROOF."