The Defense

If the case ever comes to trial, the defendant will be John Ramsey. Patsy Ramsey is no longer with us. Burke Ramsey was too young at the time and cannot be tried. As far as an "intruder" is concerned, even in the event of a DNA match the suspect's lawyer would have no trouble getting the case tossed out of court by challenging the prosecution to explain that person's motive for murdering an innocent child, how he could have entered the premises through locked doors, leaving no sign of forced entry, his reasons for writing a long "ransom" note while in the house, using paper and pen from within the house, his reasons for hiding the body in a remote room rather than taking and holding it for ransom, etc. Even in the unlikely event of a handwriting "match," his lawyer could challenge such results as unscientific, on the same basis the Ramseys themselves challenged the "experts" who matched Patsy's writing to that of the note in the Wolf case. And thanks to John Mark Karr, we've learned that even a confession is, in itself, all but worthless.

Well, you might say, what if Patsy was the one who did it, and John was just an innocent bystander, wouldn't it be unfair to put him on trial for what she did? This seems to be the position of detective Steve Thomas, who gave John a "pass," despite clear evidence of sexual assault. For Thomas, the assault was most likely part of Patsy's staging effort -- after killing her daughter "accidentally" with a blow to the head, she allegedly penetrated her daughter's vagina with a paint brush handle, to cover for herself by staging a sexual assault followed by a brutal "garotte" strangulation. According to detective James Kolar, the blow and possibly also the sexual attack most likely came from JonBenet's older brother, Burke, with Patsy responsible for the strangling and the note. So, if prosecutors attempted to indict John, would he point to Patsy and/or Burke as the real culprits, claiming he was only trying to protect the "family honor" by lawyering up and lying about who did what? After all, as Kolar reminds us, the statute of limitations on accessory after the fact has run out.

I feel sure John would not attempt a defense of that sort. For one thing, he'd have to deal with the humiliation of admitting that for all these years he's been a liar and a fraud, far from the Job-like victim he's been at such pains to portray. For another, his lawyers would realize how preposterous and self-serving such a defense would sound. The evidence of sexual assault strongly suggests a mature male attacker, not a loving mother or a nine year old child. A distraught mother might possibly kill her daughter, as might a jealous brother kill his sister. But the notion that a sexual assault and garrote strangulation would be used to cover up a head injury that could be explained as an accident; or that a nine year old boy preoccupied with Nintendo would be involved in a sexual relationship with his six year old sister . . . that's part of the folklore of this case, but  not the sort of thing you'd want to allege in a court of law. Prosecutors pray for that sort of lame defense, one step removed from "the dog ate my homework." Could of happened that way, sure -- but not likely, sorry, come up with something believable.

[Added 9-4-12: If backed against the wall with no other option, John could, of course, try to plea bargain with the prosecutor for a lighter sentence in return for information regarding either Patsy's or Burke's culpability in the murder and/or coverup. To be successful, he'd need to present convincing evidence and a convincing account as eyewitness. As should go without saying, his version of what happened would have to be corroborated by his son, Burke, who might or might not be willing to cooperate.]

John and his legal team would most likely fall back on that old old saw they've been harping on for years (pardon the mixed metaphor -- maybe it's a musical saw), the well worn intruder theory. This theory has taken quite a battering of late, especially since lead investigator James Kolar shredded it piece by piece in his new book, taking special aim at the absurdities of Lou Smit's notorious Power Point presentation. I've thoroughly debunked it in this blog as well, for example here, and here. There is no version of the intruder theory that is credible. End of story.

While none of the above will discourage team Ramsey from dredging up every single questionable, inconclusive, pointless and misleading bit of "intruder evidence" they've managed to concoct over the years, the centerpiece will inevitably be the famous "touch DNA" that inspired DA Mary Lacy to officially exonerate "the Ramseys" some years ago. As clearly demonstrated by Kolar, Lacy's assessment was both uncalled for and irresponsible. As I wrote in an earlier post,

The bottom line for me is that a real intruder would have left all sorts of evidence, including DNA -- it would have been present in abundance and esoteric means would not have been necessary to retrieve it. For Kolar, the decisive factor is his revelation that six different DNA profiles were retrieved from the victim's clothing. Does that tell us that there were six attackers? He doesn't think so, and neither do I. What it tells us is that there are all sorts of ways DNA can innocently attach itself to anyone at any time for all sorts of reasons.

Fortunately, no District Attorney has the legal power to exonerate anyone. Only a jury may deliver a binding verdict of "not guilty." While the defense could call Lacy to the stand as a character witness, she is not a DNA expert, and not in a position to offer an opinion on such a technical matter. The defense would most certainly call DNA experts to testify as to the significance of this evidence, but the prosecution would call experts of its own -- who'd have no problem reminding the jury of the difference between evidence and the interpretation of such evidence, adding that "touch" DNA is particularly difficult to interpret.

If I were the prosecuting attorney, I'd probably want to quote the following, from a document prepared by a DNA expert for defense lawyers, Evaluating Forensic DNA Evidence: Essential Elements of a Competent Defense Review. It's a long excerpt, but well worth quoting in full:

One of the most striking developments in forensic DNA testing in recent years is the testing of ever smaller biological samples. Whereas the original DNA tests required a fairly large amount (i.e. a blood stain the size of a dime) of biological material to get a result, current DNA tests are so sensitive that they can type the DNA found in samples containing only a few cells. There is likely to be enough of your DNA on the magazine you are reading right now for your DNA profile to be determined by a crime lab.

The increasing sensitivity of DNA tests has affected the nature of criminal investigations and has created a new class of DNA evidence. Analysts talk of detecting “trace DNA,” such as the minute quantities of DNA transferred through skin contact. DNA typing is currently being applied, with varying degrees of success, to samples such as doorbells pressed in home invasion cases, eyeglasses found at a crime scene, handles of knives and other weapons, soda straws, and even single fingerprints.

These developments will bring more DNA evidence to court in a wider variety of cases and may well open new lines of defense. A key issue will be the potential for inadvertent transfer of small amounts of DNA from one item to another, a process that could easily incriminate an innocent person. [My emphasis.] Studies have documented the presence of typeable quantities of human DNA on doorknobs, coffee cups and other common items. Studies have also documented the inadvertent transfer of human DNA from one item to another. Primary transfer occurs when DNA transferred from a person to an item. Secondary transfer is when the DNA deposited on one item is transferred to a second item. Tertiary transfer is when the DNA on the second item is, in turn, transferred to a third.

The authors cite a particular case in which tertiary transfer was established, "a good example of how the amazing sensitivity of contemporary DNA profiling methods facilitate a plausible explanation for what might at first seem to be a damning DNA test result."

Neither Lou Smit's Power Point nor Mary Lacy's "touch DNA" will be enough to counter either expert testimony of this sort or the absurdities of any possible intruder theory. When coupled with all the evidence that John lied, prevaricated and misled on so many occasions, the evidence of guilt will be overwhelming.

So what will be the verdict? This case has taken so many unexpected twists and turns over the last sixteen years, one hardly knows what to expect. But first things first. Let's put John Ramsey on trial, let him defend himself before a jury of his peers. And if he's innocent, he'll have every opportunity to explain why he's behaved in such a suspicious and even outrageous manner all these years.