Law & Disorder

by Douglas, John

  What is the point of keeping individuals like this in prison for the rest of their lives—people who we know are guilty and know would kill again, if given the chance—other than the moral abstraction that the state should not take a life? If we are not going to let them out, if we know we cannot change their attitudes, why would we warehouse them for thirty or forty years?

  Of course, this is not a universally held opinion. In November 2011, Oregon Democratic governor John Kitzhaber issued a temporary reprieve from execution for Gary Haugen, a twice-convicted murderer. Kitzhaber, a physician, health care policy expert and well known as a deeply moral man, stated, “It is time for Oregon to consider a different approach. I refuse to be a part of this compromised and inequitable system any longer, and I will not allow further executions while I am governor.”

  He went on to say that the two executions carried out during his first term “were the most agonizing and difficult decisions I have made as governor, and I have revisited and questioned them over and over again during the past fourteen years. I do not believe that those executions made us safe, and certainly they did not make us nobler as a society. And I simply cannot participate once again in something I believe to be morally wrong.”

  This mirrors Illinois Republican governor George Ryan’s actions in 2000, when he instituted a moratorium on execution in the state, declaring, “We have now freed more people than we have put to death under our system. There is a flaw in the system, without question, and it needs to be studied.” Before he left office in January 2003, he commuted to life the death sentences of the 167 residents on the state’s death row. “I still believe the death penalty is a proper response to heinous crimes,” he explained. “But I believe it has to be where we don’t put innocent people to death.”

  Unfortunately for himself and the citizens of Illinois, Ryan was subsequently convicted of public corruption, not a unique charge among Illinois governors. But I have no doubt regarding the sincerity of his feelings on capital punishment. And there is no doubt that as an institution, it has to be reformed.

  I agree with Governor Ryan that it is still dangerously possible that an innocent person can be executed. And I agree with Governor Kitzhaber that as sporadically and inconsistently as they are carried out, executions don’t make us any safer on a certain level. But on another level, they do. As we say in law enforcement: Capital punishment may or may not be a general deterrent to violent crime, but it sure is a specific deterrent. According to our statistics, no one who has been executed has ever killed again. No other means of punishment or correction has such a consistent and predictable record.

  But as to the second point, while I appreciate his intention and message, I respectfully disagree with Governor Kitzhaber. I believe we have to maintain some standards and say there are certain crimes that are just so heinous that the noblest thing we can do is remove their perpetrators from our midst.

  In 1960, the Mossad, Israel’s Secret Service, captured Adolf Eichmann, one of the key administrative architects of the Nazi “Final Solution” against the Jews. He was apprehended in Argentina and was brought back to Israel for trial. Before the trial began, Israel instituted a civilian death penalty, which the nation had not felt it needed before then. But for a monster that had done what Eichmann had, no other punishment seemed adequate. Few rational, compassionate people around the world disagreed with this action.

  Moral equivalence often leads down a slippery philosophical slope. But we need to ask: Is an individual any less morally culpable if he willfully tortures to death only one or two or five innocent people than if he oversees the destruction of as much of an entire ethnic group as he can? I say no. Certainly, a genocidal crime like Eichmann’s has a larger impact on society and the human race, and so is greater from a macro, sociopolitical point of view. But the Talmud, the centuries-old collection of Jewish law and commentary, states that saving a single life is like saving the world, and taking a single life is like destroying the entire world.

  In her landmark philosophical tract, Eichmann in Jerusalem: A Report on the Banality of Evil, Hannah Arendt was highly critical of the trial and the way it was conducted by “the victors,” just as she had been of the Nuremberg trials fifteen years earlier. But she was not critical of the sentence. It was natural and understandable, she felt, that the people with whom Eichmann did not want to share the earth would not want to share the earth with him.

  Anyone who has committed hideous, intentional murder against another person, it seems to me, is equally liable to Professor Arendt’s logic.

  You probably will have noted that most of the defendants we are dealing with in this book—the ones we say are innocent, as well as the ones we say are not—are white. This is not to suggest that an unfair and inappropriate percentage of capital sentences are not handed out to African Americans, Hispanics and other minorities. We are only pointing out that the kinds of offenders we feel the death penalty is most appropriate for tend to be white males. While a disproportionate number of felony murderers may be black, it is predominantly whites that commit the sexually violent, predatory-type crimes. This is not a discriminatory statement, merely a statistical observation. But the numbers are not an abstraction to me. I have seen the absolute horror of what these vicious predators are capable of doing. Because of these types of individuals, I believe the death penalty needs to be maintained.

  There is power to the argument that as long as we can’t have godlike certainty, we shouldn’t take on the godlike power of life and death. But as long as the types of people I’ve just described continue to exist in our midst, we need an effective way to purge ourselves of them, and a way to make an ultimate moral judgment and demonstration.

  Bottom line: The system is not perfect and never will be, despite advances in science and our best efforts. But there are certain crimes—certain willful acts by human beings that are so vile and hideous and remorseless—that no other response from society can appropriately address them.

  If and when we can ever come up with a system that can tell for sure whether “routine” one or two-time murder defendants are guilty, and can evaluate to a psychiatric certainty that they acted out of a free will not completely neutralized by a horrible childhood, I will embrace the death penalty for a good many premeditated murders. Until then, I will be satisfied to settle for applying it to those predators whose guilt is unquestionable, whose intentions are unmistakable, whose cruelty is despicable, and whose values fly in the face of everything it means to live in a civilized society.

  Sedley Alley, Lawrence Russell Brewer, John King, Steven Hayes, Joshua Komisarjevsky—if you want to reserve the death penalty for the worst of the worst, I think we’ve just defined it. And I, for one, don’t want to share the earth with any of them.

  PROSECUTION V. PERSECUTION OR GETTING TO THE TRUTH ABOUT RAMSEY

  CHAPTER 14

  A CHRISTMAS NIGHTMARE

  PREJUDICE: an adverse judgment or opinion formed beforehand or without knowledge or examination of the facts.

  —American Heritage Dictionary of the English Language

  Throughout my career, I’ve gotten used to taking a lot of criticism as the price for furthering what I believed in and wanted to do. But I was totally unprepared for the barrage of condemnation that came my way when, after I’d already left the Bureau, I became involved in the JonBenét Ramsey murder case. I was taken to task for selling out, for thwarting justice, for grabbing publicity at the expense of a murdered child. Some of my former FBI colleagues said I had “gone over to the dark side.”

  The Ramsey case and the reaction to it—by many in the public, the media and law enforcement—represented just about everything we’ve been criticizing here: overreliance on statistics to the disadvantage of specifics, impressions and theory over evidence, and the relentless pursuit of a good story over a true story.

  Daniel Kahneman, the Princeton psychologist who won the 2002 Nobel Memorial Prize in Economic Sciences for his work on prospect t
heory, put it succinctly in his brilliant book Thinking, Fast and Slow: When people believe a conclusion to be true, they are also very likely to believe arguments that appear to support it, even when these arguments are unsound.

  As the cases in my and Mark’s book demonstrate, determining who didn’t commit the crime can be equally as critical as who did. That’s where the Ramsey case comes in.

  For whatever reason, certain murder cases, as we’ve seen, acquire a “life of their own.” What was it that so captured the public’s imagination and the media’s attention in this case: The angelic little victim? The indelible contest images of her two-stepping in rhinestone-cowgirl duds and strutting her prepubescent stuff as a mini Vegas showgirl? The wealthy and prominent parents who lawyered up as soon as the going got rough? The intimations of a father’s sexual abuse and a mother’s barely suppressed jealousy and violent streak? The fact that it happened on Christmas Day?

  All of the above, and more. Perhaps the most elemental factor is that JonBenét, with her blond tresses, luminous blue eyes and sparkling personality, became everyone’s child, an idealized “little girl next door.” The death of this charming, magical little miss brought home to all of us the vulnerability of childhood and the fragility of happiness.

  The case has been written about extensively, so there is no need to repeat all of the details. What is important here is to show the points at which critical errors of judgment or interpretation sent the investigation completely off track and nearly doomed two innocent and grieving victims.

  To give you my perspective, we’ll start where I came in.

  On Monday, January 6, 1997, I was in Provo, Utah, with the chief of police there, Greg Cooper. Greg had been one of the best profilers in my unit at Quantico, and I was working with him to prepare a training seminar for police officers. I’d been retired from the Bureau for about a year and a half.

  Some former special agents from my unit, like Greg, remained in formal law enforcement. A number of others had joined organizations like the Academy Group, a forensic consulting and training firm built around veterans from the FBI Academy. In addition to writing books with Mark, I decided to go it alone, figuring I would have more freedom and flexibility to investigate, do research and speak as I wished. Like all special agents, I had spent my FBI career in a group setting, with a lot of time devoted to training and supervising others. Now I relished the idea of working on my own, choosing projects that meant something to me, like this seminar with Greg.

  When I checked my voice mail, there was a message from a man who identified himself as a private investigator from Denver named H. Ellis Armistead. He said he had been hired by John and Patricia “Patsy” Ramsey regarding the homicide of their daughter and asked if I was available to provide assistance in the investigation. I replied that I had several more days here in Provo, but that if they still wanted me later in the week, I thought I was available. Like everyone else, I had heard about the murder of this little girl, but with the holidays, travel and preparing for the seminar, I didn’t know many of the details.

  I learned later that another former member of my unit had also been approached, but he had declined based on his assumption that the Ramseys were guilty. He did not want to work on behalf of murderers. Based on the sketchy details I had heard, I thought there was a pretty good chance one or both of the parents were responsible for the murder, but I didn’t presume to know enough to make that judgment on a factual basis. Statistically, most murders of children occurring inside the house are committed by parents or other close relatives; but in our business, statistics are only a starting point. Each case is unique and has to be figured out on its own specific terms. Also, I didn’t want to get the reputation of someone who makes up his mind before examining the evidence. So as long as my terms were agreed to, I said I would take the case.

  Lee Foreman, a member attorney with Haddon, Morgan, and Foreman, the firm John Ramsey hired, called and said I would be dealing with and reporting to them. On the January 8 flight from Salt Lake City to Denver, I made some general notes to organize the case in my own mind. I was interested in knowing:

  1. The basic facts of the case: who was in the house, when did the murder happen, what was the cause of death, how was the body found and by whom, was there much blood or any evidence of sexual assault?

  2. Where was the ransom note found, and what did it say?

  3. What were the profiles of the family members, and did they have any known enemies?

  4. Who had access to the house?

  5. How many people knew about the child’s talent show appearances ?

  When I arrived in Denver, I met with Lee Foreman and Bryan Morgan in their offices. As a private consultant, I knew my working rules had to be different than they’d been in the Bureau. There, I had only been working for one “side”: the law enforcement agency. I explained that, as with my FBI clients, I would conduct an independent examination of the facts and evidence made available to me. Whatever I came up with, they could use or ignore as they saw fit, but I would not alter my findings to suit anyone else’s purposes or theory of the case.

  I told Foreman and Morgan they could buy my time and expertise, and I would give them a report, verbal at first. If they chose to use it—fine. I would write it up with the mutual understanding that since I am not an attorney, it may be subject to subpoena. If they didn’t want to use it, I would not speak publicly or reveal what I had learned, but I reserved the right to speak on publicly available information. In either case, I would not shade or alter any opinion to suit a client.

  Much of that first meeting was devoted to disabusing me of some of my preconceived notions about the case, about which I still knew very little.

  For example, I was under the impression that JonBenét had been a professional model rather than just a participant in child beauty pageants. Second, I thought there had been some considerable delay in contacting the police. In fact, it had happened as soon as Patsy had noticed the ransom note on the bottom of a circular staircase, despite the note’s warnings not to contact law enforcement authorities. Third, it was my impression that John and Patsy had been uncooperative and had been stonewalling the police in their investigation. Morgan informed me that they had been completely cooperative, that they had welcomed a complete search of their house, had answered all questions and offered blood and handwriting samples.

  They had only “lawyered up,” the attorneys told me, when John and Patsy had perceived that the Boulder Police Department and the Boulder County District Attorney’s Office considered them leading suspects in the murder.

  When I asked how the body was found, the attorneys told me that with the knowledge and consent of the officer on the scene, John Ramsey and his close friend Fleet White had searched the house, and that ultimately John himself had discovered the bound and gagged body of his daughter on the floor of a remote basement storage room, which they called “the wine cellar.”

  This fact intrigued me more than any other. In my unit’s long and extensive experience with child abduction and murder, if a family member has committed the crime, then it has to be staged to look like something else, such as a kidnapping or a burglary gone bad, or even a rape. You can’t just report to the police that your child has been mysteriously murdered, because the suspicion naturally falls directly on you, unless there is evidence of someone else having done it. As a result, the killer almost always “arranges” to have someone else find the body. In this case, it would have been quite easy for John Ramsey to suggest to Fleet White that he go look around the area of the wine cellar, but instead he did it himself.

  When the body was discovered, a blanket was wrapped around the torso, but the arms and legs were sticking out. This also didn’t seem like a parental murder to me. Normally, when a parent kills a child, there is some care given to covering the body and making it dignified and protected. We sometimes call this a “softening” of the appearance in which the body will be found. No matter what kind of pare
nt you are, it’s hard to kill your child without some sense of guilt or remorse.

  There was hardly any blood in the area that constituted the extended murder scene—from JonBenét’s second-floor bedroom, down the circular staircase to the kitchen, then down another set of stairs to the basement landing, through the boiler room and into the wine cellar. There was a small amount of blood in the crotch of her panties, and another stain that the lawyers said appeared to be semen. If it was semen and matched John Ramsey’s DNA, then that would be the case right there.

  But I was doubtful it would prove to be semen—John’s or anyone else’s—and I wrote that in the notes I took at the time. JonBenét suffered massive blunt-force trauma to the head, and it was not our collective experience that offenders with this much obvious rage and aggression would engage in penile rape. Some other form of abuse—inserting fingers or an object—might be expected if he wanted to show his contempt or sense of control, which is what I believed the blood on the panties represented. This was about anger and retaliation, probably against John and merely taken out on his innocent and defenseless daughter. But this was not the presentation of someone who was primarily obsessed with having sex with a little girl.

  We would later learn that the semen report was erroneous.

  The evening of my arrival, Bryan Morgan and Ellis Armistead took me to the Ramsey house in Boulder. The neighborhood was definitely upscale, the kind you’d target if you were a sophisticated burglar. I was also told that the home recently had been part of a charity open-house tour, which is among the easiest ways for would-be intruders to case potential targets. I didn’t like the fact that anyone could have learned the layout of the place this way. And I didn’t like it when I found out that though the house had a functioning alarm system, the Ramseys had stopped using it because JonBenét and her nine-year-old brother, Burke, kept setting it off by accident.