Chapter 6: Elephant In The Courtroom
I sin, therefore, through zeal,
whenever I enter on the subject. You
are sufficiently American to pardon me for it.
Thomas Jefferson, October 15, 1785
I wore the same pair of green slacks and a worn blue blazer with sagging pockets to all three days of my jury trial. I had helped select the jurors I wanted on the panel the day before using their handwritten pretrial questionnaires. Lozow, Leidner and I had agreed on most of them. At 8:00 a.m., on Tuesday, June 12, 2001, the first full day of my trial began. I could smell hay in the valley just south of Boulder on Colorado highway 93. I hadn’t purchased suits or ties in the last five years, just cowboy boots and Levi’s. My dad, who still hadn’t retired, sent me a check for $10,000 the week before my trial and I paid a sliver of legal fees. I drove to court in Judith’s ‘94 Jimmy. I didn’t have much left, but she stood by me. I listened to country western, driving the rural road between Boulder and the courthouse in Golden. Its romantic music and I had certainly found romance. Judith and I were engaged. I was relieved to see the trial begin. I thought the trial started at 8:30 a.m. “I was a few minutes late, which drove Judge Jane Tidball crazy.”
The jurors would have to base their verdict upon the evidence that Tidball would let them see or hear. She didn’t let them listen to the arguments between my lawyers and the prosecutor about the evidence. When any controversy came up, she sent them from the courtroom to their deliberations room. I missed them. I wished the jurors could hear all of the evidence. The lawyers’ language may have confused some of them, but everyone else in the courtroom, the press and a lot of my friends, saw the son-of-a-bitch rule being played out. Jane Tidball decided what was “probative,” “relevant,” or of “evidentiary” value.
Millions of Americans watched Judge Lance Ito in the O.J. Simpson trial make crucial decisions about what the jury might hear, outside the jury’s presence, and hold interminable sidebars, while a dozen lawyers sliced and diced the definition of “relevance.” Depending upon the “side” the viewers in America took, they saw Judge Ito’s decisions as either favoring the prosecution, or favoring the defense. Television’s talking heads kept score of each victory, each defeat or any humiliation. The press had a part in my trial, and every day the reporters showed up. I wanted them there.
For a year and a half before my trial in the Ramsey case, my lawyers had argued that my 1997 personal journal never should have fallen into the hands of the prosecution. We had filed a motion immediately after the raid on Judith’s home demanding the return of the journal and a determination by the court that it had been obtained illegally. During the legal tournament that followed, several hearings on the illegality of the search had been set, then continued, set and continued. Some months before my trial, Hall advised the court that he would not use my journal in my prosecution. He claimed that our motion to suppress the journal was therefore moot. In light of this development, my journal, somewhat shopworn, was returned to me. Meanwhile, Tidball had a copy of my journal for her reading pleasure.
Hall had also retained a photocopy of my journal. In the opening moments of the trial, my lawyer, Leidner, explained:
We resolved the suppression issue, and Mr. Hall indicated that he would not use any information obtained from the diary in his case in chief. The issue remains, if Mr. Miller were to testify, whether or not any information that was gained from the diary would be admissible for purposes of impeachment.
Prosecutor Hall replied:
Judge, this is something that I think the court will have to address when it comes up … the court’s order suppressing the diary would not be some kind of a license for Mr. Miller to commit perjury; for example, if Mr. Miller were to testify in any way that is inconsistent with the diary.
Judge Tidball deferred her ruling on whether Hall would be able to use my journal to refute my testimony until I should decide to testify. We suspected that Hall had planned to use my personal journal, otherwise, why keep a copy in his file? The return of the original journal made little difference with copies of it circulating through the courthouse.
Act I: Jury Selection
I did not have enough money for my lawyers to hire a jury consultant. However, each person selected from the jury pool had completed a handwritten juror questionnaire. Hall and Lozow had collaborated in preparing the questionnaire to identify jurors who may have read about my case, to measure their level of interest in the death of JonBenet and to ascertain their attitudes toward police work, etc. I had received the completed questionnaires early Monday afternoon, June 11, and then spent the rest of the day and evening in my capacity as a graphologist determining to whom I should trust my future.
I analyzed each juror for specific personality characteristics. Important handwriting strokes that I looked for included those generally denoting high intelligence, the chicken scratches so common in a doctor’s script. I looked for each juror’s independence in forming his or her personal opinions by analyzing some lower case letters. By examining the handwriting for the degree of the slant, I eliminated those whose handwriting indicated they might be too easily carried by their emotions. I found persons with self-confidence, but who also would not dogmatically cling to their opinions. I culled the 50 or so questionnaires for jurors with personal integrity and practice throughout their lives of living by the Golden Rule.
Neither Lozow nor Leidner take chances preparing for trial. Just as I examined the handwriting, my lawyers reviewed the comments of each potential juror for prejudices, strengths and weaknesses. The questionnaires revealed some whose families were in law enforcement, and who were probably not good choices for my trial. They helped to identify those unsympathetic to John and Patsy, and not a good choice for Hall to empanel. Only twenty-four citizens were brought into the courtroom as prospective jurors. The questionnaires had reduced the jury pool to a more manageable number. I had shuffled the remaining questionnaires, separating the jurors I wanted by virtue of their handwriting into one stack, and the less desirable candidates to another. Whichever stack of questionnaires the jurors came from, all of those selected came from the Jefferson County jury pool that had been handing defense attorneys’ guilty verdicts for decades.
I expected Tidball to continue to decide in favor of Hall’s prosecution throughout the trial. I had to trust that this jury would be able to question her judgments. I knew I was on trial due to the son-of-a-bitch rule. I wanted to empanel a bright, intuitive jury that would be able to understand the issues, jurors who could identify the truth no matter what Hall told them, or insinuated, that no crime had been committed.
The process of voir dire is where the judge will ask the jurors to talk about themselves, their occupations, if they are married, have children or are impaired in any way that would prevent them from serving on a jury. The prosecution and the defense then ask the jurors questions that may reveal any prejudices. The lawyers would then be allowed “preemptive challenges,” where, one by one, the prosecution and the defense would excuse a juror to winnow the field to twelve. The trick for a good trial lawyer is to get the prospective jurors to talk as much as possible in order to get a sense of how that person might respond to the evidence and remove the ones he doesn’t trust to decide in his favor.
One juror, whose son was a police officer, said that he doubted he could keep an open mind. Lozow asked him,
“If you were sitting in Mr. Miller’s seat, knowing some of the things I’ve told you about, would you say to yourself: I don’t want this juror.
He was released, along with another prospective juror who was not an American citizen. Of the remaining twenty-two persons, Hall would release five, and my attorneys would release another five. I have no idea of the strategy Hall applied for picking jurors. He used three of his preemptive challenges to excuse citizens I didn’t want on the jury. Two others were used to excuse persons I very much wanted, especially a woman, a middle-aged psychologist, who had everything I was looking for in her handwriting and she had expressed little sympathy for John and Patsy.
Losing those two prospective jurors left two “wild cards” on the panel. One man had simply answered the questions with “yes” or “no” and signed his name. That wasn’t much to work with. I could see his intelligence, but could not determine as much as I wanted about his moral character. The other wild card was a woman whose handwriting indicated she could become inflexible once her opinion was formed. She also tended to be overly expressive of her views and wanted attention.
Tidball swore in the jury and gave them preliminary instructions. One instruction that reverberated in my own mind throughout the trial was, “Do not draw any conclusions from the objections or from my rulings on the objections.” The jury didn’t have to wait long to be tested on that instruction.
Act II: Opening Arguments
In any trial, following the selection of the jurors, the lawyers begin with “opening arguments.” This is where each side lays out its theory of what happened: why the prosecution believes the defendant is guilty and what the defense will show as the basis for finding the defendant not guilty. The opening statements of the lawyers are not “evidence.” They are “arguments” to help guide the jurors in their understanding of the evidence that each side will present.
Hall presented the accusations of the state in his opening statement, and in doing so considerably mangled my knowledge of the truth. Referring to my April Fool’s Day meeting with Vacca, Hall reported to the jury, Mr. Miller then said, “Well, we don’t want you to examine anything. We want to buy something from you.” I was prepared for him to interpret the truth, but the blatant nature of his misunderstanding of the facts shocked me.
I nudged Lozow, wanting him to object to the prosecution’s misstatement of the facts. But, there is truth in Abe Lincoln’s old saying that “A lawyer who represents himself has a fool for a client.”
To raise an objection during an opening or closing statement is not only ill-mannered, but bad form in that it constitutes an argument, rather than evidence. Arguments do not preclude deliberate falsehoods and fictions. If a lawyer fails to prove the assertions of his opening statement, he loses credibility with the jury. “Don’t let him get to you,” Lozow warned me.
Leidner gave the opening statement for me. He explained that I had arranged for Lewis to meet Vacca to determine if he had the famous ransom note, that I had attended the one meeting on April Fool’s Day and that I had nothing to do with Lewis’ calls and return visits. He explained that Lewis, and not I, had asked to buy the ransom note and Lewis’ sudden outburst concerning the note had put me in a “somewhat state of shock and disbelief.”My lawyer explained Vacca’s calls to Patrick Burke and Thomas’ district attorney’s office to complain, followed by attorneys for the Ramseys.
Now, get this straight. The evidence will be that the lawyers representing potential defendants in the homicide case are contacting a district attorney’s office and saying: “We want you to investigate what’s going on with our expert witness, who’s going to be here to defend this potential murderer. We want you to go after these people who are trying to buy this note.”
Leidner described Burkhalter’s investigation into the identity of Lewis, and Lewis’ instructions that I not identify him. He described my interview with Burkhalter. He explained how The Globe’s lawyer, Recht, was giving advice to Lewis and agreeing with me that no crime had been committed. He explained that when the Vaccas were asked to identify a photograph of Lewis, they could not do so with certainty. Then came Hall.
Judge – I’m sorry, Counsel. Judge, I’ve got to object to further comments on how this investigation went after this point concerning Mr. Lewis. It seems to me that anything about Mr. Lewis at this point is not relevant to this trial.
Tidball ordered the attorneys to her bench for an argument outside the hearing of the jurors. Leidner argued that anything Lewis did on his own, and contrary to the advice of his lawyers while “running amuck,” was relevant. He also argued that the disposition of Lewis’ case (for a bribe of $100,000) was relevant. Hall said:
Judge, that’s absolutely not right. The only way that the disposition of the Lewis case would come up is if either party called Lewis as a witness and impeached him with it. Beside that, the disposition of the Lewis case is not relevant at all. It’s got nothing to do with this.
To which Tidball replied,
“I’m going to sustain the objection .”
To which a flabbergasted Lozow responded:
This is – well, I mean, this is in opening statement, what’s evidence and not evidence. If we can’t prove and he [Leidner] can’t comment on it, he can talk about – it seems to me he [Leidner] can talk about the actions of Lewis, which are profoundly consistent with what we’re saying about a client running amuck.
To which Tidball replied, recognizing Hall’s need for a better basis for objecting, and confident that I could appeal a guilty verdict:
I agree that you can talk about the time period relevant to this case, but not forever into the future after that. So, wasn’t that the basis of the objection, Mr. Hall?
Judge, it was that and also the fact that I thought this was going towards the disposition of the Lewis case, which seems to me to be clearly inadmissible unless Lewis testifies …
The arguments raged on. Leidner stated that all of the actions up to the time of the indictment were relevant, and that those actions were the basis of my defense. Tidball and Hall were “not seeing the relevance.” Lozow explained to Tidball that he had undisputed testimony, and evidence, that Lewis continued to run amuck as he tried to solicit a copy of the ransom note. Tidball ordered the jury out of the courtroom for the first time during the trial, thus disrupting my opening argument. She took a ten minute recess before requesting that Lozow tell her “precisely” what he understood the issue to be. The jury gone, he said: I know that Mr. Hall’s concerned about this issue of, you know, the checkbook dismissal of the case against The Globe for $100,000 and Mr. Lewis, and so are we.
Lozow argued several issues pointing to the disingenuous conduct of Hall, clearly involving the son-of-a-bitch rule, without saying the precise and unofficial term. He pointed out that Hall had objected during an opening statement, a departure from courtroom decorum, and that he had objected not to speculation or prejudicial fictions, but to indisputable facts. Tidball had instructed the jurors that the opening statement is not evidence. The defense either makes its case consistent with its opening argument, or the jury will likely convict.
Hall’s objection during my lawyer’s opening statement was a trivial insult compared to his conduct before the trial began by feigning his intent to call Lewis as a witness. We had no interest in subpoenaing Lewis to the trial, given his $100,000 dismissal, because it was a waste of time as the reporter would raise his Fifth Amendment protection against self-incrimination.
Less than a month before the trial, Hall told Lozow he intended to call Lewis. In the weeks to follow he gave no indication of having changed his mind. My lawyers could not dismiss an appearance by Lewis as part of the deal The Globe struck to save his skin. After having preserved Lewis as a witness until the opening day of the trial, Hall claimed that the “checkbook” dismissal of Lewis’ case couldn’t be raised unless Lozow called Lewis as a witness. To this, Lozow said of Hall, “He doesn’t want this jury to know about the disparate treatment and some of the political issues that went on in this case.”
Lozow explained to Tidball that part of the evidence was that I had done a handwriting analysis of the ransom note and that my opinion was inconsistent with what the lawyers for John and Patsy wanted. Their solution was to “take out Mr. Miller as a credible witness, and an indictment is a great way to accomplish that purpose.”
I had raised the ire of Haddon, Morgan & Foreman with my appearances on radio talk shows. One of John and Patsy’s private investigators was assigned the task of providing the Jefferson County District Attorney’s office with “evidence” against me of any sort he could. It was John and Patsy’s investigator who had searched my divorce files for accusations of bad character and photocopied pages of my journal my ex-wife had made, developed a history of my work as a writer, private investigator, handwriting expert and defense lawyer.
Mr. David Williams actually presented that information to the district attorney in a kind of stylized fashion, again, as a character assassination with regard to Mr. Miller. They just didn’t want him to breathe in terms of credibility.
As important as the hatchet job done by John and Patsy and the bribe The Globe paid for the dismissal of charges against Lewis, was the conduct of Lewis throughout his reporting in the Ramsey investigation. Lozow continued:
… The evidence will indicate that Lewis ran amuck, did whatever he did, didn’t care much about who said what was legal and what was illegal. He thought, as a First Amendment… that he could do what he wanted as a newspaper reporter.
And lo and behold, that proved to be the case, because Lewis – his case was dismissed. It was dismissed without an admission of criminal liability. He was not indicted as a complicitor in this case. There isn’t a moment’s suggestion that that was done other than for money.
Hall told Tidball that he had talked to Lewis’ lawyer, Jeff Pagliucca, a month before the trial and had learned that it would be “unwise” for him to call Lewis as a witness. (Good ole’ Craig, he wasn’t willing to come into court and burn me or himself down). When, on the day before my trial, Hall told my lawyers that he would not be calling Lewis to testify, he claimed to Tidball that he “didn’t want to be accused of ambushing my lawyers, leading them astray and then not calling him [Lewis].” By then, of course, it was too late to subpoena the potentially crucial witness. Hall argued:
It seems to me that Lewis’ credibility is only relevant if he testifies as a witness. If he doesn’t, it doesn’t matter whether he’s a credible person or not. So it seems to me that the disposition of the Lewis case is not relevant in any way in this case.
… It’s a huge waste of time, and it’s not relevant.
Tidball replied that she had previously refused to dismiss the charges against me based upon an equal protection argument that my lawyers had filed once they learned of The Globe’s bribe. She also recalled denying a motion to dismiss charges against me based upon an argument of grand jury abuse by Hall. She stated that “the People” have broad discretion in charging and prosecuting cases, and ruled that she would limit my lawyers’ opening argument to the specific time frame surrounding the events on April Fool’s Day, “And I specifically am not going to allow in evidence … Mr. Lewis’ disposition of his charges with the People.” I wrote on my legal pad, “Only in AmeriKa,” and slumped in my chair. The absurdity of Tidball’s ruling, denying evidence of Lewis’ bought dismissal, while forcing me to bear the legal culpability from his acts, angered me. Lozow placed his hand on my arm, looked at me, and shook his head.
Leidner renewed the issue with a second argument that there was a relationship between the meetings of Lewis in April of 1997 with the Vaccas, and the time of the filing of charges in August of 1999, and that all of the events in between were relevant. Tidball replied, “I just don’t believe [the two year hiatus] it’s relevant.” Leidner returned to the various pieces of evidence describing Lewis as “the proverbial 800-pound gorilla going off to do what he wanted.” Tidball said she “heard enough argument” and called in the jury.
The jurors spent well over a half an hour sitting in their room, getting to know each other. In that time, Hall, through an astute strategy, had kept Lewis out as a witness. The jury had not witnessed Tidball’s work on behalf of the prosecution. He had objected to the truth behind my prosecution and Tidball and Hall had together savaged my lawyers’ opening statement. Leidner, having been prevented from describing Lewis’ participation in the alleged crime, and his subsequent checkbook dismissal, had to leave his prepared statement and notes behind. He recrafted his opening statement on his feet, and as an experienced trial attorney, performed magnificently. He reviewed what had occurred in Vacca’s office, and corrected the claims of Hall regarding my participation. He described how Lewis would not take no for an answer on the sale of the ransom note and that he called the Vaccas and returned to their home without me. He told how Lewis had also contacted the brother of investigator Ellis Armstead for access to the ransom note. Lewis also wrote a letter to Haddon asking him for an interview. “Screw him,” Haddon scrawled on his request and it was done. Thus, Thomas’ district attorney’s office was ordered, on instructions from John and Patsy, to go after The Globe reporter and his lawyer.
Leidner continued in his recrafted opening to describe my interview with Burkhalter and his claims at that time that there would be no prosecution of either Lewis or me. After all, their investigator had determined that no crime had been committed. Leidner raised the issue of Vacca’s letter to Thomas and those of John and Patsy’s powerful lawyers. He told the jury at the end of his opening statement:
So what we had, [was] the sequence of events where this powerful law firm, this dream team representing the Ramseys puts the pressure on the D.A.’s office – and the end result is to turn Tom Miller into a scapegoat and into damaged goods in the event the Ramseys are ever charged.
Leidner sat down and Tidball recessed the court for lunch. The jurors had heard all of Hall’s opening statement and as much of the defense’s opening statement as this judge would allow.
During the lunch break, Lozow and Leidner went off to review their cross examinations of Hall’s afternoon witnesses and I had the company of my future wife, Judith, and a friend, an English professor, for lunch. Both women had been sitting in the first bench of the gallery, directly behind me and my lawyers all morning. We drove into the postcard town of Golden, close to the courthouse, where I spent the hour reviewing the handwriting of the jurors we had selected, especially those of the two jurors I had not preferred for the panel.
I had spent the morning session occasionally burying my head in my hands, scribbling notes during Hall’s performance in front of the jury or staring at the judge, trying to fathom her obvious prejudice despite the innocent little girl look on her face. Judith, meanwhile, had been watching the responses of the jury. She had noticed the talkative, inflexible woman whose handwriting had concerned me, whispering several conversations with one of the women I did want on the panel. That was possibly a good sign. Another juror, the only black man on the jury and a career postal worker, had kept a poker face. He had paid close attention and I believed his intelligence would benefit me.
Act III: The Prosecution’s Case
The court reconvened in one hour and one minute after the lunch break. Karen Vacca took the witness stand first. She believed that I had originally called her husband’s office regarding a document for her husband to examine. She said she kept records of telephone conversations, but that wasn’t what I had said. I had said that I had a client who wanted to discuss a handwriting case. That was what Lewis and I had agreed he could legally ask under the protections of the Freedom of the Press. Over the four years and two months between the time of the April Fool’s Day, 1997, meeting and my trial in June, 2001, Karen Vacca’s memory of the incident had hardened into what was now a different story, but one that she believed was true.
During Leidner’s cross-examination of Karen Vacca, Hall objected on the grounds that his questions were argumentative, or called for a hearsay response. Tidball would sustain every objection. When Hall made an unsustainable objection, Tidball would provide a different basis for his objection and then sustain it. Son-of-a-bitch.
Karen Vacca’s testimony distorted the truth as I knew it, but I had expected that. She had met Lewis on several occasions. On one occasion she told her husband, “the sleaze is here.” To her frustration, she could positively identify Lewis in the photo lineup with only 50% accuracy. She didn’t like admitting that, but she did. She also admitted, under cross examination, that she never heard me make an offer to purchase the ransom note, and that she never saw or heard from me again after the single meeting on April 1, 1997.
The prosecution’s star witness was, of course, Donald Vacca. I had been looking forward to seeing him again for years, as I wanted the hell of this felony indictment against me to end and I knew it would not end until I faced my accuser in court. During a jury trial there inevitably comes the moment when one of the persons sitting at the defendant’s table must be identified to the jury as the accused. I’ve never heard of a witness identifying the lawyer by mistake. When that moment came for me as the accused, instead of as the lawyer, I waved to Donald Vacca. I was certain that he would know who I was by my location in the courtroom, but given his inability to identify Lewis for Burkhalter’s photo lineup, I didn’t mind helping him out.
“This isn’t some goddamn carnival,” Lozow hissed in my ear.
Thus chastened, I listened with a sense of relief. I had respected Vacca’s work years earlier when he and I had competed in the market of handwriting experts in Colorado and for that matter in the Western United States. He had as solid a reputation as mine as a professional witness.
Hall began his direct examination of Vacca by eliciting his 25-year career as a Denver Police Officer, his training by the United States Secret Service, the United States Postal Inspection Services, the Colorado Bureau of Investigations and the Federal Bureau of Investigations as a document examiner. Vacca recounted his positions in the Southwestern Association of Forensic Document Examiners, “up until about a year ago.” He had moved from Evergreen to southern Colorado and had become less active as an expert witness. He also confirmed court jurisdictions in which he had testified during his career.
The professional witness recalled his meeting with Lewis and me similarly to the way his wife had, including the claim that I had called because I “wanted a document examination conducted.” Both of the Vaccas had testified to this inaccuracy before the grand jury in 1999, and their present testimony had been scripted by Hall in terms of their grand jury transcripts. My lawyers listened closely for any variance. The script didn’t change and included even Vacca’s imagined fear that Lewis was reaching for a gun under his coat when he produced the envelope of money.
The truth was, Lewis didn’t wear a coat that day; the manila envelope was “9” by “12” and carried openly. Still, Vacca embellished the moment with “… an old policeman’s reaction. I thought the next thing that was coming out was a gun“ He saw himself as a victim and Lewis and me as gun-toting outlaws.
Donald Vacca also testified, “… these guys have just offered me $30,000 for the Ramsey ransom note.” We wanted that testimony. Although I hadn’t offered anything to Vacca, his admission that he had the most famous ransom note in history in his possession on April 1, 1997, was exactly what Lewis had wanted. And now we wanted the jury to know that Lewis had, by his surprisingly assertive offer, tricked Vacca into revealing the fact that he did, indeed, have the ransom note.
At one point Vacca began to testify to a telephone conversation he had with Ramsey lawyer Bryan Morgan regarding the confidentiality of the ransom note. Leidner objected on the basis of hearsay. Tidball again coached the prosecutor by stating “the objection is sustained unless you have an exception.” Hall stammered about the fact that the telephone conversation did not constitute hearsay, but was a “verbal act.” A moment later, Leidner objected again. Vacca continued to testify to a telephone conversation with Morgan, who was not at the trial to be cross-examined. Again, Leidner was overruled.
Vacca had claimed to the grand jury that he had signed a typical confidentiality agreement with the law firm regarding the ransom note. That claim was crucial to the basis of my indictment. As an expert witness employed by a lawyer, Vacca would have a fiduciary responsibility not to sell information, and I, as a lawyer, would be bound not to ask him to violate that trust. I did not know when we arrived if Vacca had possession of the note, nor of any contract. Most importantly, I didn’t offer to buy anything. Hall’s position was that I knew Vacca had the note, that I knew he had received it from John and Patsy’s lawyers and that I made an offer to buy it. However, once charges were filed, Lewis’ attorneys had uncovered a “Confidentiality and Publishing Agreement” between John and Patsy and Vacca, not between their lawyers and Vacca. Even if I had offered to buy the ransom note, which I did not, I still would not have been violating the law in question. That presented a huge problem in Hall’s case and he knew it. The agreement that Vacca had signed in no way resembled the agreement that a lawyer presents to a handwriting expert.
Mr. Hall: Sir, do you think it’s necessary for you to sign some kind of formal agreement which sets out what you can and cannot do concerning the materials you’re given by a law firm?
Mr. Leidner: Your honor, it’s irrelevant, what his opinion is. It’s also a matter of legal conclusion.
The Court: The objection’s overruled. He can testify to what his understanding is.
While Vacca can give his opinions about handwriting, he should not offer his opinions as to law, which is what an interpretation of a contract represents. He’s not qualified to do that. Leidner’s next two objections were also overruled. He hung in, and finally won an important issue.
Q. (By Mr. Hall) Mr. Vacca, you’ve told us that the two men who met you in your office back on April 1st talked to you about buying the note. Would your reaction-
Mr. Leidner: Objection, your Honor. That’s a misstatement of the evidence. Two men did not talk about buying the note. One person talked about buying the note. That Person was Mr. Lewis. I object to the characterization of the testimony by the prosecution.
Tidball did not like sustaining the objection, but she had to. Hall had clearly misstated the facts. Neither she nor Hall wanted the jury to think that Hall had lied, nor did they want the jury to hear Leidner state the truth that was the basis of his objection. “Please, in the future, just state the ground of objections, unless I request argument.”
Lozow was going crazy. Immediately prior to my trial, he had traveled to San Diego, California, to visit one of his children and his two year old granddaughter. To escape the noise of the little girl, he had taken up a spot on the beach and read my 1997 journal. During those four hours, the sun had burned his face. Tidball’s antics turned his already crimson forehead deep purple. I reached over and put my hand on his arm. He looked at me as though I’d stuck a pin in him.
“Gary, calm down. Think how it looks to the jury.” He blinked his eyes, took a breath, and a smile warm as California sunshine replaced the purple rage of an instant earlier. “You’re right,” he said and the trial went on.
As Leidner continued to cross-examine Vacca, grand jury testimony came back to haunt the expert witness. Leidner had the transcripts. Leidner also had a copy of the “Confidentiality and Publishing Agreement” between Vacca and John B. and Patsy P. Ramsey. That agreement asserted the Ramseys’ rights in the ransom note and prohibited Vacca from releasing any information about the contents of the note, or from profiting from the contents of the note. In short, it made Vacca’s professional opinion as to who wrote the ransom note the property of John and Patsy, and this is what their lawyers wanted in case the expert opinion should not represent their clients’ innocence. Their payment assured expert silence. The private contract was presented to the jury. At one point Vacca testified during my trial that he was “offended” if asked to sign a confidentiality agreement and that it was unusual to have to do so. But then, he had to acknowledge that he had signed a private agreement with the John and Patsy that would preclude his opinion of the note’s authorship becoming public.
As to Vacca’s opinion as to who wrote the note, there was no way to elicit that testimony. His opinion about the author of the most important piece of evidence in a high-profile investigation into an innocent child’s death turned on the entirely peripheral and imaginary issue of commercial bribery, involving an editor’s legal attempt to locate this crucial piece of evidence.
Leidner let the jury learn from Vacca’s own lips that it was Lewis, and not I, who made the offer to purchase the ransom note. He let Vacca repeat that it was Lewis who contacted him again and again for the ransom note, and not I. The jury also learned of the long professional relationship between Vacca and Burkhalter who, after having investigated the visit of a mystery man and his lawyer to Vacca’s home, told his friend that no crime had occurred on April Fool’s Day, 1997.
Haddon testified before the grand jury that he had been outraged with Lewis’ lawyer for accompanying his client to Vacca’s house. Why was this? Did he not want a lawyer present? Did he want Lewis to go without representation and to have no witness? Or, was it that Haddon did not want The Globe editor to have a handwriting expert in his company? What was it about a handwriting expert that angered Haddon? The grand jury did not hear the answer to those questions because they were not asked. Haddon wouldn’t have to confront any of his statements from August of 1999 or at my trial either. He had arranged to be on a “fishing trip” in Montana at the time of my trial. Never a man to lust for the limelight, or the witness stand, he sent instead his partner, Lee Foreman, to testify against me. The substance of his testimony against me was that I knew, or must have known that Vacca had the ransom note, and that I led a reporter there to interview him.
“For whom do you work?” Hall asked Foreman.
The humble response from the partner of the most elite criminal defense law firm in Colorado was, “Sort of for myself. I have a small firm in Denver called Haddon, Morgan & Foreman. I’m the Foreman.”
Foreman, with his barrel chest and tall stature, looks like a man who once played professional football. His hair is gray, his eyes a sparkling blue and he is ruggedly handsome. He carries himself gracefully and is a charismatic presence in the courtroom. He brings with him a sense of humor and attractiveness as a witness. Juries like that. When Hall asked him why his law firm had hired a handwriting expert such as Vacca to analyze the ransom note, he replied, “Because we don’t know very much.” In fact, John and Patsy’s lawyers, although knowing nothing for sure, must have suspected that identification of the ransom note’s author, by means of handwriting analysis and comparison, could be both crucial or catastrophic to their defense of John and Patsy.
Having practiced law since his graduation from Stanford Law School in 1972, Foreman performed admirably for the prosecution. He gave a report of how his law firm first obtained the ransom note on January 5, 1997 from Detective Linda Arndt of the Boulder Police Department. He acknowledged under cross-examination that his law firm “had no legal entitlement to the note at that point in time.” He gave details of how the police first obtained handwriting specimens from John and Patsy. The police had dictated the note to each of them verbatim. He shook his head for his grieving clients. Lozow objected to both the narrative answer and the hearsay statements of unidentified police officers. Tidball overruled Lozow’s objection, inviting Foreman to continue to romance the jury with his well paid for reverence for his clients.
Again, the law firm of Haddon, Morgan & Foreman demonstrated it’s brilliance in sending Foreman instead of either of the other two partners to testify at my trial. Although, theoretically, Foreman should have been able to testify as well as Haddon about the firm’s retention of Vacca and their representation of John and Patsy, he really couldn’t. He hadn’t testified before the grand jury and, unlike Haddon, could not be held to the transcript of his testimony. Foreman hadn’t received a letter from Lewis and therefore could claim “I don’t know,” or “I haven’t seen that document.” To ease the burden of proof on Hall, he floated through his testimony like a man afflicted with partial amnesia, a very bright and certain amnesiac.
Foreman could pick and choose how he would answer a question, depending upon what items he wished to recall. Hall asked if the Boulder Police Department had placed any conditions on John and Patsy’s lawyers and the witness recalled that there had been conditions. When Hall asked if the law firm conveyed those conditions to Vacca, the following answer and exchange occurred:
“I think so. The truth is, Mr. Hall, I can’t remember exactly what l said to Mr. Vacca when we hired him.”
Mr. Lozow: I’d ask that the comment about what he thinks be struck.
The Court: The motion is denied presently. Mr Hall if you can lay a foundation.
Attorneys who are alert to the likelihood of an appeal, and there are few attorneys more alert or more aware that my conviction would be appealed than Lozow, need to make a record in a trial to preserve issues that may give grounds for that appeal. Tidball, alert to the fact a trial is about what a witness knows, not about what he thinks he knows, knew that to permit Hall to coax testimony from thoughts, rather than knowledge, would make the conviction he sought vulnerable to reversal. That’s why she asked Hall to lay a foundation. That is why she continued to coach Hall throughout the trial. A prosecutor with little or no evidence to support his indictment needs all the help he can get.
The conditions Foreman claimed the Boulder Police Department placed on their release of the ransom note were that John and Patsy’s lawyers were allowed to use it for investigative purposes only, and that they were not allowed to publish it beyond the needs of their representation. Lozow had to wage a battle of objections. Foreman testified as to a “we” rather than an “I” in describing events. Lozow objected. He wanted Foreman to provide specifics of what he did, not give hearsay testimony of what others did. Nevertheless, Tidball permitted as a “verbal act” his naming the persons for whom he was offering testimony. Only Lozow’s unquestioned knowledge of the rules of evidence forced some compliance with those rules that the prosecution, Foreman and Judge Tidball were willing to flout in my case.
Hall wanted to place into evidence a letter from Sergeant Tom Wickman of the Boulder Police Department addressed to the John and Patsy’s investigator, Armstead. The letter referred to the actions of Detective Arndt, who had given over the ransom note to the lawyers. Foreman was being asked to confirm the facts of a letter written by a police officer, about the actions of another police officer and addressed to someone who was not endorsed as a witness. Foreman didn’t have actual knowledge of the facts stated in that letter. Wickman and Armstead did, but they hadn’t been subpoenaed as witnesses. The very alert, and by now somewhat cranky Lozow, brought that to the court’s attention.
Hall continued to justify his effort to introduce the letter under the concept, as yet unpublished in any rules of evidence as an exception to the hearsay rule, as a “verbal act.” Neither Leidner nor Lozow had ever heard of such an exception. That justification worked so well in Tidball’s overruling of Lozow’s objections that Hall relied on some ersatz “verbal act” several more times.
As the day wore on, Lozow’s frustration and Tidball’s determination to offer her courtroom as a platform for Hall’s inquisition noticeably grew. Hall offered Foreman a hypothetical question:
Mr. Hall: Mr. Foreman, suppose someone came to Mr. Vacca, after you gave him a copy of the note, and tried to sell the note to him. If he had sold it, would he have breached his obligations to your law firm?
Mr. Foreman: Yes.
Mr. Lozow: Objection. I object. It isn’t his law firm that’s the victim or alleged victim in this case. This question suggests that if someone came to Mr. Vacca to sell the note to him – that has nothing to do with the facts of the case. I object to the form of the question.
The Court: The objection is overruled…
Hall’s question confused Vacca’s role in the attempted purchase or sale of the ransom note. Still, it illustrated the underlying theory of contract law under which Lewis approached Vacca: an offer is made, possession of the item is confirmed, the offer is refused and the contract negotiation ends. Contract law, as it would have applied in commerce to the April Fool’s Day episode, never entered into the equation of criminal justice.
Mr. Lozow: Well, I object to the Court assuming what Mr. Hall meant by a question.
The Court: I was going to let Mr. Hall address that after your objection, Mr. Lozow.
Mr. Lozow: And I object to the hypothetical, because there’s no testimony that Mr. Miller tried to buy the note. So what Mr. Lewis did is something different.
The Court: Mr. Lozow the objection is overruled. Please do not provide argument unless I request it. Just state the grounds for the objection.
Mr. Lozow: And I object to a hypothetical that doesn’t include facts in this case relevant to the charges against my client.
The Court: Thank you. I think you already stated that objection. It’s overruled. Go ahead, Mr. Hall.
The cross-examination of Foreman by Lozow went about as well as could be expected, given the avidity with which the prosecution and judge together applied the son-of-a-bitch rule.
One issue that Lozow was able succinctly to elicit from Foreman was the connection between Haddon, Morgan & Foreman to District Attorney Thomas. Lozow asked the witness if he had instructed Vacca to write a letter to Thomas asking for my prosecution.
Mr. Foreman: We thought it was worthy of letting the boss [Dave Thomas] know about it, yes.
Mr. Lozow: And you know the boss; is that right?
Mr. Foreman: I do.
Mr. Lozow: Mr. Haddon knows the boss?
Mr. Foreman: I suspect he does.
Mr. Lozow: Mr. Morgan knows the boss?
Mr. Foreman: We’ve worked opposite each other for many years.
There had also been several times when Haddon and Thomas worked together to get Thomas elected as the district attorney, but that was more answer than Foreman offered. There had also been political gatherings, but again, why ask Foreman for more answer than he probably would have given? When asked about the dormancy of the charges against me for a period of two years, the witness replied, “We were eager to see charges brought.”He also admitted with great charm that it was both unusual and fortunate that his law firm had obtained a copy of the ransom note without charges having been filed against either John or Patsy. Remarking in court at what he denied was a coup, Foreman said, “I’m sure it’s nothing personal, but police say ‘no’ to me a lot.”In the Ramsey case, sometimes the police said yes, sometimes no, and Hunter always said yes, yes, yes.
When it came to Foreman’s knowledge of whom may or may not have seen the ransom note besides lawyers and investigators for John and Patsy, he just didn’t have any answers that could have helped my case. He was aware that John Fernie and his wife, Barbara, were two of the first people to arrive at the scene of the crime, but he didn’t know if they had read the ransom note, or had a copy of it. He knew that Fleet White was also there, but he had “no idea”if he had read the note. And the same was true for the Reverend Hoverstock, whom Patsy had also invited over for the missing daughter party.
Foreman’s knowledge of the agreement between Vacca and the John and Patsy, the “Confidentiality and Publishing Agreement.” provided an important element of “doubt” to be presented to the jury. Lozow and Leidner had to struggle to bring evidence of the business relationship versus the lawyer/client relationship between Vacca and the Ramseys to the jury’s attention. For Foreman, the question of the “Confidentiality and Publishing Agreement” didn’t matter, and his answer smelled of fish:
… Well, I think the document that – if you’re talking about the one delivered to you today, it may memorialize Mr. Vacca’s understanding that he was to keep his – the work that he did for us private, but I don’t think it has anything to do with the events that bring us here today.
And, to that, Lozow answered, “All right. Well, that’s what you think.”
In fact, Vacca’s relationship with John and Patsy was a commercial one and not an attorney/client relationship and that had been thoroughly examined earlier when Mr. Vacca was on the witness stand. Foreman had not been in the courtroom during that testimony and it was clear that either Vacca, driven to the truth under cross-examination, was lying; or else the John and Patsy’s lawyer was not quite sure whether his law firm had a written agreement with Vacca or not. Even if Haddon, Morgan & Foreman had executed a written agreement, Foreman’s testimony indicated that the agreement was not violated by an editor, who tested the agreement, while in search of a story. For instance, if a person asks to rape a sex object for a certain dollar amount and the sex object says no, and the rapist goes away, has a crime been committed?
As the testimony continued, Foreman was able to clear up a matter that had caused some head scratching on my defense team. The typewritten date on the “Confidentiality and Publishing Agreement” was May, 1997, and more than a month after the April Fool’s Day meeting and Lewis’ subsequent efforts to buy the ransom note. The handwritten date of Donald Vacca’s signature was November, 1997, more than seven months after the alleged criminal activity. Why the delay?
Mike Bynum, the business attorney and friend of John Ramsey who had directed him to Bryan Morgan, had produced the stylized language of the form agreement. John and Patsy’s lawyers realized that not only Lewis of The Globe, but a great number of other journalists, were offering lots of money for information on the case. Approximately a dozen or more persons with access to the Ramsey file and who worked on their behalf were ordered to sign the same agreement to prevent anyone from “making money” from anyone other than the Ramseys.
Despite the signed agreements, according to Foreman, the media continued to press for any information about the death of the little beauty princess. He testified to the intense media pressure, the autopsy photographs that had been published and a letter from Lewis to John and Patsy’s investigator, Ellis Armstead’s brother in Chicago, offering $50,000 for the ransom note.. Foreman also testified that eventually the note was published. He never revealed, if he knew, who had turned this prize piece of evidence over to the media. He acknowledged knowing that I had given a public opinion on the ransom note.
Yeah. It came – how do I want to answer that? It came to my attention that Mr. Miller claimed to have an expertise, which I do not believe to be recognized in any court, as a graphologist, and that at some point he offered up an opinion for whatever it might be worth.
I saw in Foreman’s dismissal of my credentials the kind of trashing that would have been in store for me had I ever testified against Patsy. Foreman’s answer was false. I had worked as a court qualified expert witness in fraudulent document examination since 1987 and I was the only graphologist in Colorado who was also court qualified. Foreman knew my qualifications. He would have had no reason to doubt my analysis of the ransom note, save that his law firm defended the parents, under an umbrella of suspicion, in JonBenet’s death.
By casting aspersions on my credentials, Foreman opened the door for Lozow to drive through with a truckload of my qualifications. My attorney reminded Foreman that Haddon, Morgan & Foreman’s investigator, Dave Williams, had done an extensive background investigation of me, examining every court case in which I had represented a client, every document filed in my divorce and my resume as a handwriting expert and writer. Williams had also provided an invoice for his work in the “Ramsey/Tom Miller” matter and had been paid for his work by the law firm.
Lozow wanted to put the invoice of the John and Patsy’s investigation of me into evidence. He wanted the jury to see the expense the Ramseys had gone to in order to help the Jefferson County District Attorney proceed with my criminal prosecution. When Lozow offered the document as Exhibit F, Hall asked for a moment to test Foreman’s knowledge of the invoice, the same invoice that he had just acknowledged was a product of Dave Williams’ work for his firm.
Mr. Lozow: Mr. Foreman, prior to seeing this document in court today, had you ever seen it before?
Mr. Foreman: I don’t know.
Mr. Hall: I object upon lack of foundation.
The Court: The objection is sustained.
In this case, Lozow’s foundation was based upon the fact that Foreman’s law firm had turned over the results of Williams’ investigation, including his invoice, to the District Attorney’s Office, as evidence. With Foreman’s claim that he “didn’t know” if he had ever seen the invoice before, the foundation was lost.
An exception to the hearsay rule for a document to be entered into evidence is known as the “business record” exception. Lozow began to inquire of Foreman about the elements necessary to lay a foundation for the business record exception to the hearsay rule. And, Foreman knew it as he wiggled through his testimony.
Mr. Lozow: Would David Williams have done an investigative memorandum in the Ramsey/Tom Miller case without your firm’s okay?
Mr. Foreman: I can’t honestly answer that. I didn’t – I don’t remember telling Mr. Williams to do anything personally with regard to Mr. Miller, except find out who this guy is.
Even though Foreman couldn’t “honestly” answer Lozow’s questions, my lawyer continued to lay his foundation. He elicited from Foreman that he had known Williams for over twenty-five years since they had worked together at the public defender’s office and that they had worked together in the criminal defense business. Williams also had the same office address as Haddon, Morgan & Foreman.
Mr. Lozow: And in looking at Defendant’s Exhibit F, does that look as if it is consistent with the directions you gave to Mr. Williams to find out who this fellow was?
Mr. Foreman: Mr. Lozow, I know you’re trying to lay a foundation through me. I just don’t recognize the document. If you’re asking whether or not this contains information with regard to Mr. Miller, it would appear to.
Mr. Lozow: And is it authored by the person who offices at your office?
Mr. Foreman: It is authored by Mr. Williams, whose office is at the same location.
Mr. Lozow: We’d offer exhibit F, your Honor.
The Court: The objection is sustained.
When Tidball sustained an objection without hearing one, Lozow smiled, first looking to the jurors, then to Leidner and me where we sat amazed.
Mr. Lozow: I didn’t hear an objection, Judge.
Mr. Hall: Well, there was one, and it’s the same one made before. There’s no foundation for this document.
The poignant silence and stage presence of Gary Lozow, tall and slender like Abraham Lincoln, wasn’t wasted. Tidball blushed. Her work at the prosecution’s table was no longer lost on the jury, the lawyers or those in the gallery. She blushed, like a little blue-eyed girl caught with her hand in the cookie jar. Lozow proceeded with a bemused look on his face, but only a few moments passed before Tidball called a ten minute recess. When she returned to her chair, high above all the others in the courtroom, the blush had drained from her face.
Lozow was not inclined to surrender his case and my future to the barring of what he believed to be admissible evidence. The problem he faced was that Tidball refused to admit into evidence several letters, or testimony, to the effect that Lewis had continued to try to purchase the ransom note against my advice.
In one instance, a letter addressed to Haddon and signed by Lewis, the reporter requested a meeting with Haddon. Another letter from Lewis to Armstead, also requesting a meeting, had been forwarded to Haddon. One letter contained Haddon’s handwritten remark, “screw him.” Since a checkbook dismissal had resolved Lewis’ prosecution, Lozow wanted the jury to see that I was now the person getting “screwed” in Lewis’ place. Lewis also wrote to Steve Armstead, Ellis Armstead’s brother in Chicago, offering him $50,000 for access to his brother that would result in a copy of the ransom note. The letters and information had been turned over to my defense team during discovery.
In both instances, Lozow needed Haddon in person to lay a foundation for these documents that referred to Lewis’ behavior – behavior I had nothing to do with and had advised him against. But, since Haddon was on a fishing trip in Montana, Haddon’s partner, Foreman, could deny knowledge of these letters, rendering them to hearsay.
That battle raged for the rest of the afternoon as Lozow questioned Foreman at length, thereby forcing Hall and Tidball to continue their prosecutorial collaboration and inadvertently educating the jury panel in the political intricacies of the son-of-a-bitch prosecution at hand.
Foreman acknowledged that he had defended journalists and other clients, who had failed to take his legal advice despite what they may have paid for that advice. Lozow cross-examined Foreman about the letters Lewis had written and got him to admit that Lewis had displayed some “audacity.” When Lozow moved to have the letter introduced into evidence, Hall objected as to foundation and the judge sustained. Lozow continued to pepper Foreman with questions about the office routines that would qualify the entry of the letter into evidence. Hall objected as to relevance and Tidball sustained. Finally, recalling the ridiculous means by which Hall had obtained the entry of a document into evidence for the prosecution as a “verbal act,” Lozow offered the same reason. Hall objected and Tidball sustained. The jury saw their collusion as clearly as if the two were wearing matching black robes. Lozow then questioned Foreman about the contents of the letter Lewis had mailed to Haddon on which Haddon had scrawled “screw him.” Tidball did not want the jury to see it or hear it.
Mr. Lozow: …This is your partner’s letter. You look at the letter.
Mr. Foreman: Well, the one thing that I can identify about the letter that I believe to be inaccurate is his suggestion that all of …
The Court: Wait, wait. Mr. Foreman, are you going to testify to the contents of the letter?
The Witness: I – I thought that’s what he asked me, your Honor. I’m sorry. I answer questions until I’m told not to.
Tidball ordered the lawyers to her bench for another sidebar conference. Lozow explained that he was attempting to lay a foundation for an exception to the hearsay rule known as an “adoptive admission.” Hall argued that there was no adoptive admission and as Lozow tried to respond, the following exchange occurred outside the ears of the jury.
Mr. Lozow: I think …
The Court: Stop. You prove your case however you need to. I’m going to apply the Rules of Evidence to the case. Okay. The objection is sustained presently. If you want to try to lay the foundation further, you may.
Members of the jury were now beginning to show signs of boredom with yawns and whispers among themselves. Finally, Lozow was allowed to proceed.
Mr. Lozow: …sometime in the fall of 1997 the note was everywhere; is that correct? Sometime in the fall of 1997 the note was published, yeah. Have an idea on how it got published?
Mr. Foreman: You want my speculation?
Mr. Lozow: Sure.
Mr. Hall: And I don’t, however. I object on grounds of speculation.
The Court: The objection is sustained.
Unidentified Juror: Darn.
That identified juror was the woman whom I had not necessarily wanted to seat. I had been concerned for her assertiveness, a tendency to talk too much and inflexibility. But now her personality traits were beginning to express her opinion of the proceedings, and drawing a welcome laugh from the courtroom.
The judge’s steadfast refusals, in the presence of the jury, to admit an obviously important document into evidence was having a corrosive effect on Hall’s case. Lozow, recognizing this, again approached Foreman with a letter that Haddon had written in response to a letter Lewis had written, asking for an interview, advising him of the Commercial bribery statute. The same tap dance ensued. Foreman wiggled by answering “yes and no,” “this appears to be,” “I would guess, although I do not know.” From my seat at the defense table I could see one juror after another begin to knit eyebrows over each new objection by Hall and to smirk at the inevitable “sustained” from Judge Tidball. Foreman had been watching the jury, too. Perhaps he thought that some name calling would inspire the jury to convict me?
Mr. Lozow: Did you ever talk to the people from The Globe about how they got the note?
Mr. Foreman: Certainly not.
Mr. Lozow: Those were really the bad guys, The Globe, right?
Mr. Foreman: Oh, I don’t know about bad guys. I mean, they are what they are.
Mr. Lozow: And in your mind’s eye and Mr. Haddon’s eyes and Mr. Burke’s eyes, they were the bad guys, right?
Mr. Foreman: The word disgusting comes to mind.
In the final salvos between the attorneys that afternoon, Hall conducted a redirect examination of Foreman, seeking to diminish my credibility.
Mr. Hall: Sir, I have only one area of questioning for you. In response to one of Mr. Lozow’s questions, you testified that it was your understanding that Mr. Miller was a graphologist. What is a graphologist?
Mr. Foreman: My understanding of graphology is that it’s a kind of a – kind of a junk science that has to do with detecting personality traits of the individual who writes a letter from the manner from which that letter is formed.
Lozow diffused the smear by asking Foreman if he was familiar with a well respected lawyer in the Denver area named Shelly Don and advised him that the lawyer selected jurors through the use of graphology. Considering the effort I had made in selecting jurors whose handwriting conveyed keen intellect, I hoped for the message to resonate with the jurors.
At long last Foreman was dismissed from the witness stand, the jurors were advised not to discuss the case or to listen to or read any reports about it, and, finally, were dismissed for the day. The reporters in the gallery flipped closed their notepads and then Lozow advised Tidball that he wished to make a record. He reminded her that Haddon had gone fishing and sent Foreman as a representative of his law firm, but that Forman’s appearance had prevented entry into evidence of important documents because of her application of hearsay rulings. Lozow continued:
I’m bewildered, to be candid with you, in terms of the Court’s rulings … you know, I can’t get Mr. Haddon on the line right at the moment in terms of getting him here, and the last thing Haddon is going to do is come here and help us in this case.
So I think we’ve been prejudiced, and I think irreparably, by Court rulings that are erroneous … I think this is important for you to hear. We got these in discovery. They are not subpoenaed documents but rather given to us by the prosecution as relevant documents under the rules of discovery.
… I would suggest to the Court that issues about veracity, authenticity, reliability … I think we’ve been hampered and hamstrung on what I think is obfuscation by the prosecution.
I think the Court helped the prosecution with regard to how the prosecution came with different objections in terms of, you know, finding the right hook to hook into. And that troubles me …
I’d renew and ask you to admit these documents or reserve any final ruling with regard to these documents, because I think they are very relevant to our defense. We told you about them. We told you in opening statement we would be talking about it. We told you we can tie them up, and we told you at the bench that Mr. Miller could talk about some of the things that this fellow Craig Lewis did, no matter what he said. And I think we’ve been severely prejudiced by the Court’s rulings.
Thus chastened, Tidball advised Lozow that although many documents are highly relevant, they are not admissible at trial and that he had failed to present any exceptions to the hearsay rules. Leidner meanwhile entered the fray:
Mr. Leidner: I’m just looking for the definition of verbal act. I don’t see it under Rule 803 [the hearsay exceptions] anywhere.
The Court: It’s not in the rule as far as I know.
Mr. Leidner: Oh.
The Court: But you could ask Mr. Hall.
(The proceedings were then adjourned at 5:21 p.m.)
“How’d we do, Chuck?” I asked my friend as we left the courthouse. “They never laid a glove on us,” he said.
My defense team’s private investigator, Wally Barrett, worked innumerable hours in the weeks before the trial, tying up loose ends as to witnesses, locating them to serve them with subpoenas for their court appearance, and then, during the trial, stationing himself in the hallway outside of the courtroom to direct traffic. His agents had served subpoenas to detective Thomas and former Ramsey friends, Fleet White and John Fernie, for the motions hearing a month earlier. Dan Glick, the reporter for Newsweekwho had published the ransom note, was also served with a subpoena. As it turned out, Tidball denied the particular motion my lawyers had filed that required those witnesses and no one had to give testimony during a hearing in May.
Steve Thomas had shown up at the motions hearing and had sat on the right hand side of the courtroom, with the prosecution and police, throughout the hearing. He had been courteous to me, as he had been in our few conversations in the past, and perhaps because I was with Judith, who had assisted him in his investigation of John and Patsy. Since John and Patsy had filed an $80 million dollar law suit against him, he was busy defending himself at that time and had no desire to provide testimony in my case that might come back to haunt him in the Ramseys’ civil action. At the end of the day, I congratulated him outside the courtroom on his book, JonBenet: Inside the Ramsey Murder Investigation. He said he was just a working stiff trying to get on with his life, “and, here we are, fighting among ourselves.”
I hadn’t thought of us as “fighting.” Although we had not come to the same conclusions regarding John and Patsy’s involvement in JonBenet’s death, both of us were under enormous financial pressures from the legal battles brought to us by John and Patsy. My lawyers needed to ask him about his knowledge of the circulation of the ransom note in their effort to defend me. A few days after that non-hearing of motions in May, I received a form letter from Thomas, soliciting funds for his civil case with the Ramseys. I didn’t have much money left, but I mailed him a check for $100 and wished him the best of luck. My check was returned a few days before my trial with a curt letter, dismissing my donation. Wally Barrett pointed out what Thomas had said about Lewis in his book.
… I don’t know why any decent person would work for such a gutter publication. They are utterly beyond redemption. In 1999, Lewis was indicted by neighboring Jefferson County on charges of extortion and conspiracy for his work on the Ramsey stories and for his blatant attempt to force me to talk.
I had fallen into the category of the unredeemed because of my association with The Globe. I hadn’t been involved in any way with Lewis’ extortion efforts, but the smear of “tabloid trash” is a broad one.
Glick from Newsweek did not show up in May. His publication hired the law firm of Holland and Hart to contact Lozow, hoping to explain that the journalist had been unable to attend. Glick’s lawyer, Susan Pollvogt, apologized to Lozow and to the court, and to finesse Glick’s way out of a contempt of court citation. John Fernie was scheduled to be out of town, but he had spoken over the telephone to Lozow and gave him an affidavit regarding his testimony which satisfied my lawyers’ needs.
Fleet White didn’t come to the motions hearing either. Lozow had tried to talk to him by phone and had written a letter to him. White replied in an angry letter that he would not comply with the subpoena he had been served and that he had no respect for my case as I was a “tabloid lawyer.” In fact, White reacted in a rage upon receiving his subpoenas, shouting and cursing the process server and one time confronting the hapless agent by wadding up the papers and throwing them back in his face. When he didn’t show up on the date of my motions hearing, Lozow asked that he be cited for contempt of court.
About an hour after the motions hearing in May and after all of the lawyers and witnesses in my case had left the building, White showed up at Judge Tidball’s office. She brought him into the courtroom and advised him that it was his duty to report to the court if subpoenaed to a hearing or a trial. He explained that he did not want to be involved with the “tabloids,” have his privacy invaded nor provide information about the Ramsey case. With blue-eyed sincerity, Tidball forgave him, but warned him that he had better not do it again, or “I will put you in jail.”
Mindful of Tidball’s warning to White, certain of his desire not to testify and aware of his arrogance, Lozow asked Barrett to deliver a letter to White. He had been subpoenaed again, but Lozow was concerned first that he might not show up to give testimony on my behalf regarding his knowledge of the ransom note and, second, that he would wind up in jail. Lozow wanted that letter delivered to White on the evening after the first full day of my trail.
Everyone involved in my case was exhausted after that first day, including Barrett. Since I lived in Boulder only a few blocks from White’s house, he asked me if I would deliver the letter. “Just put the letter in the screen door and ring the doorbell,” he said.
I agreed and at about 9:00 p.m. I set out along with a friend to deliver the letter. When we arrived the lights were out downstairs, which suited me just fine. I didn’t want to see White. His stony silence in the Ramsey case had confused me. I believe he possesses critically important information about the actions and demeanor of John and Patsy, as well as Burke, on the day of the tragedy that he refuses to publicly divulge. I placed the letter Barrett had written pleading with him to respond to his subpoena and rang his doorbell several times, then walked back into the night and home.
Before the jury was brought into the courtroom again on Wednesday morning, June 13, Lozow had some issues to address before this judge. His had been a busy night of research. He had received motions to quash the subpoenas that had been served on Dan Recht, lawyer for The Globe, and Dan Glick, journalist for Newsweek on this evening before those witnesses had been scheduled to testify. In addition, Tidball had ordered Lozow to provide her an answer using case law regarding a legal question that had been raised the day before: Could Hall use my journal as rebuttal to any testimony I might give from the witness stand?
Soon the jury would be making its decision and would need instructions. Tidball, the prosecution and Lozow would provide these to guide them in determining my guilt or innocence. Hall, during that evening, prepared a new jury instruction. He wanted a “complicity” instruction. This would require the jury to find me guilty if the evidence showed that I was involved in Lewis’ act of commercial bribery as an accessory. That instruction was a stretch. Jury instructions are the stuff of appeals, acquittals and convictions. If Lewis committed a crime, but has had his charges dismissed, there was no guilty person with whom I could be found to be in “complicity.” Although the two sides had agreed on jury instructions days earlier, Hall explained that, “I try to work on jury instructions as the trial goes on.”There had been no mention of “complicity” in my indictment, but by the end of the first day of trial, Hall realized he had failed to show any evidence to support the count of commercial bribery.
My attorneys and Hall had also argued the day before about whether Hall’s jury instruction determining that the crime of commercial bribery should be derived from the language in the statute, as it ordinarily would, or from the language of the grand jury indictment, a more unusual procedure. The statutory language, being much less particular than the indictment’s language, paved an easier burden of proof for Hall. And, finally, Tidball had to determine if the jurors would receive an instruction from my lawyers defining the attorney/client privilege to avoid any prejudice on their part for my having asserted it on behalf of my client, Craig Lewis.
Dismissing the decisions to be made, Tidball deferred any rulings until the issue must come up and insisted on getting the trial started and moving it along as rapidly as possible.
Act III: The Prosecution’s Case (Continued)
Hall’s first witness on the second morning of my trial was Jim Burkhalter, the investigator who had advised me that I was not the target of an investigation in April, 1997, and to whom I had voluntarily given a statement in May, 1997, based on his claim that Lewis was the only target of his investigation. He was an excellent witness. He began his career as a police officer in Denver as a patrolman. Later he was a field training officer and thereafter a detective in Denver. That’s where he got to know and work with Vacca. He got to know me when he went to work for the Jefferson County District Attorney’s office as an investigator.
Burkhalter reviewed his investigation of me and recounted in detail the voluntary statement I had given him in May, 1997. He laughed pleasantly recalling how we had both tape recorded the interview. He noted that my statement included the fact that I believed the Ramsey defense team had retained Vacca. I also raised the issue of attorney/client privilege and claimed that privilege in refusing to answer some questions regarding my client, Lewis. As soon as Lozow began his cross examination, Tidball saw fit to read the jury the instruction of the attorney/client privilege.
Ladies and gentlemen of the jury, I’m going to read you the following instruction: You are instructed that the laws of Colorado provide what is called an attorney/client privilege. In other words, if an attorney client relationship exists, and a client provides information to an attorney, including a client’s identity, during and in the course of that relationship, an attorney cannot disclose such communication to any third party unless the client specifically allows the attorney to disclose such confidences. There are exceptions to this rule of evidence and law. An attorney may disclose attorney/client communications to third parties if he must do so to defend himself against criminal accusations that arise in whole or in part because of such attorney/client relationship.
Lewis, through his lawyer, Pagliucca, had provided to Lozow a waiver of his privileged information so that I could divulge any confidences that I had held for him over the last four years for the purposes of my trial. Lozow had wanted the jury instruction read to the jury so that they would not misinterpret the reason for my refusal to answer some questions for Burkhalter.
When questioned about the Vacca’s identification of Lewis, he stated that Karen Vacca had picked out Lewis’ picture with 50% confidence in her selection. Donald Vacca picked out someone else’s photograph with 80% certainty. It was those two failed memories that had drawn me into this fiasco. Had the Vaccas been able positively to identify Lewis, my naming of my client would never have been required.
Burkhalter acknowledged that he had originally told Vacca that his investigation had turned up no evidence that a crime had been committed. He had therefore dropped his investigation until ordered to reopen it by District Attorney Thomas, based on a letter from the Ramseys’ lawyers. By the summer of 1997, Burkhalter again put the investigation on the shelf as he had been unable to positively identify Lewis, nor could he identify a crime.
Lozow used my interview with Burkhalter as well as his presence on the witness stand to build his case for me:
Now during the course of this interview, it became evident to you, did it not, that both Mr. Leidner and Mr. Miller thought that you should be investigating the death of JonBenet Ramsey; is that correct?
Burkhalter explained that he wasn’t investigating JonBenet’s death because he was working for the Jefferson County District Attorney, a different jurisdiction from Boulder.
“Well, wasn’t the District Attorney’s office in Jefferson County, including Dave Thomas, part of a panel involved in the investigation of the Ramsey case?”
That question drew an objection from Hall on the basis of relevance. Tidball called the lawyers to her bench for another sidebar. Lozow argued that Thomas was directly involved in the decision to pursue the charges against Lewis and me based on the letter from the Ramseys’ lawyers. He pointed out that part of the theory of our case was that there was political pressure applied to Thomas’ office for the prosecution, which helped to protect the Ramseys. His argument prevailed.
In the years before trial, Lozow had fussed over the statement I had given to Burkhalter. He had read it innumerable times and had me read it again and again, then had me explain every detail in every sentence. Lozow got Burkhalter to admit that I told him I could not give a statement without my client’s permission. The jury understood that I had cooperated as best I could without that permission.
Lozow also brought up the fact that I had told Burkhalter that Vacca might have an ethical problem with regard to his work on the ransom note:
Mr. Lozow: Because if Vacca had done an opinion that indicated that Ramsey had written the note, then of course that would not further the Ramsey defense, is that correct?
Mr. Burkhalter: That’s Miller’s opinion, yes.
Lozow also got Burkhalter to admit that he had never heard of the commercial bribery statute before he received the letters from Donald Vacca and John and Patsy’s lawyers. Hall then raised an objection to the use of his own witness’ report, which favored me as “self-serving hearsay.” Tidball invited the jurors to stand up and stretch while she called the lawyers for a bench conference. Tidball sustained Hall’s objection.
Nevertheless, Lozow returned to make clear to the jurors what my lawyers had been saying from the interrupted opening statement.
Mr. Lozow: During this half-hour-or-so conversation with Mr. Miller, that you’ve testified about, he told you he thought this was a witch-hunt, did he not?
Mr. Burkhalter: Yes, sir.
Mr. Lozow: He told you that he thought he was being made a scapegoat in this case, did he not?
Mr. Burkhalter: Yes, sir.
Mr. Lozow: He told you that your office’s power to charge him was an enormous exercise in terms of the power simply to charge someone.
Mr. Burkhalter: I believe so, yes, sir.
During a brief redirect examination by Hall, Burkhalter said it was not unusual at all for Thomas to receive a letter that complained of criminal conduct. Under re-cross-examination, he admitted that never before in his work in Jefferson County had he been ordered to reinvestigate because of letters from three criminal defense lawyers demanding a prosecution. He admitted that in the 13 years as a detective in Denver, the few other letters from lawyers were complaints about his work, but not letters seeking prosecution. He left the witness stand with his credibility as an investigator tarnished in front of a jury. Hall had no more witnesses. Tidball, with nursery school efficiency, asked her clerk to remove the jury for the “morning recess.”
Once the prosecution rests in any trial, the defense must then raise a motion for acquittal to comply with rules necessary to file an appeal of a conviction. The jury having departed the courtroom, the judge said, “Motions, Mr. Lozow.” As he shuffled papers to begin, she said. “As a preliminary matter … I’m going to decline to … give the jury the indictment.” This meant that since Hall had not produced evidence of the elements of the original indictment of commercial bribery, she was going to allow him to use the easier statutory language. The indictment could not be used as a basis to dismiss the unproved charges against me. She had agreed to the inclusion of the jury instruction of “complicity,” meaning that I had consorted with a person who was no longer charged with any crime. This would have been laughable had years of my life not been on the line. Kafka would have relished the irony.
Lozow wore himself out arguing the failure of the prosecution to prove the elements of the indictment and that to do so had been the prosecution’s burden. He needed to make that argument, and that record, as this was one of Tidball’s more damaging decisions should I appeal.
The judge had so often decided on behalf of the prosecution that I expected no ruling that might benefit my case would be made. I also had growing confidence that the jury would decide the case in my favor on the merits of the evidence. One juror who was a pistol, had exclaimed “Darn,” earlier in the proceedings. She had just left the courtroom with her notebook open, face up on her chair for anyone to see. She couldn’t keep her opinions to herself, as her handwriting had told me, and she seemed to have an opinion that I was not guilty.
Act IV: The Defense’ Case
Lozow subpoenaed John Fernie because he had seen the ransom note and might have been given a copy. Fernie testified that Patsy called him to their home on December 26, 1996. He arrived there at approximately 6:30 a. m. and approached the house via the alley and the patio door that leads into the kitchen. He found the door locked.
Mr. Fernie: And I didn’t see anybody, but saw a piece of paper laying on the floor, looked at that. It was facing the other direction, read it, and after the first few lines realized something very strange was happening. And so I ran around to the front of the house and knocked on the door and was let in.
I would have expected a collective gasp at the testimony. But, no. What in the world was the ransom note doing on the floor in a hallway adjacent to the kitchen? This note was the only link that John and Patsy had to their missing child and the alleged “kidnappers.” It was key evidence. It wasn’t a laundry slip or a grocery receipt, and even those would not reasonably be left in reading view of the patio door on the floor. Who could have put it there? No one was near the door. No one was protecting these three precious sheets of paper? One must wonder: had the three sheets been neatly stacked by someone and set on the floor to be read by the next arriving guest? Fernie ran around to the front of the house to be let in, having already read for himself the crucial “evidence.” Fernie continued:
… I didn’t pick it up, it was inside the door and I was outside. The door was locked. I read through the door.
Mr. Lozow: You actually could read some of the language of the note?
Mr. Fernie: Yeah.
Fernie also testified that later in the morning, he and his wife, Barbara, and Fleet and Priscilla White, while waiting for the “supposed” kidnappers to call, sat with a detective trying to figure out what the note meant. He didn’t recall if they were looking over the actual note, or a copy of the note. He recalled talking to police officers off and on all day with no specific admonitions from anyone not to comment on or question the contents of the note. On cross examination, Hall only asked if Fernie had been given a copy of the note, to which he said he had not. But clearly, everyone in the house that morning had seen the ransom note, read it and wondered who might have left it in plain sight for all to read and ponder. After the discovery of the dead child’s body, obviously not a victim of kidnapping, everyone who had seen the ransom note must have wondered all the more. Why would even the stupidest of kidnappers leave a handwritten note in plain view after the child was dead and in a place bound to be discovered?
Former Boulder Chief Deputy District Attorney, Bill Wise, testified next. Lozow asked if he had ever prosecuted a case for commercial bribery in his 24 years in Hunter’s office. Hall objected and Tidball sustained.
Wise, having researched the database of the Boulder District Attorney’s Office, testified that the Fernie’s, the White’s and Pam Paugh, Patsy Ramsey’s sister, were the only persons he knew for certain had seen the ransom note, besides John, Patsy and Burke. His office had not turned over the ransom note to John and Patsy’s lawyers, he said, but rather, he believed, Linda Arndt, at the direction of her supervisors had done so. According to Wise, Alex Hunter’s office never entered into an agreement with the Ramseys or their attorneys as to how they should handle the note.
As to Hunter’s office and any limitations it would have put on the Boulder Police Department in its handling of the note: “… see, we don’t really have the control of the police to tell them anything, and they don’t really want to be told anything. So we didn’t -we didn’t try.
Law students learn that at times the best cross-examination of a witness is “No questions.” Hall missed that lesson. At least, he missed that lesson when he began to probe Wise’s knowledge of Pam Paugh’s familiarity with the ransom note. The witness stated that after Pam Paugh returned to the house several days after the murder to pick up clothing and personal items for John and Patsy, she was reported to have said she either had seen the ransom note, or had a copy of it. That told the jury that copies of the ransom note could have been circulated. If so, the issue of commercial bribery was muted by the circulation of a document purported to have been kept officially secret.
Peter Boyles, the implacable Ramsey critic and Denver radio talk show host who had interviewed me on the air regarding my opinion that Patsy had written the ransom note, was the last person to testify on the second morning of my trial. He eloquently described the media’s interest in the ransom note:
… the so-called ransom note became the sorcerer’s stone, everybody wanted to know – wanted to see it. There were rumors what was in the note, not in the note, rumors who wrote the note, who didn’t write the note, and it did really become the polestar for a number of people in the press, they wanted to see it, wanted to touch it, wanted to print it, wanted to talk about it.
Boyles explained that before the note was released a certain “mythology” had developed regarding it, that “whoever had it would have an explanation for what had happened.” He also recalled that someone from inside the Ramsey investigation had shown him a copy of the note. He could not recall the exact date, but guessed it was in late June or early July of 1997. He was not permitted to have a copy of it, but he was allowed to read the copy as many times as he wished. And Boyles recalled that I had spoken on the air identifying Patsy as the ransom note’s author. The note was entered into evidence through Boyle’s testimony and so was an August, 1997, issue of The Globe which carried the headline, “It’s Patsy’s Writing,” and which identified me as the expert who had identified her hand.
Lozow did not ask Boyles the identity of the person who showed him the ransom note. The radio talk show host was standing behind his First Amendment rights and a shield law which offers some protection to a journalist who doesn’t wish to name his sources if asked in court.
The issue of commercial bribery came up during Boyles’ testimony as to the “benefit” that he conferred upon any source by refusing to name that person in the court room. Hall asked him if he would have offered money to his source for a look at the note. Boyles said that he didn’t, but added that “… many, many, many times in our business, people buy and broker news items.” On Lozow’s redirect examination, he said, “.. . the networks buy things all the time. National magazines buy things all the time. .. the question he is asking me is would I do it.” The way the statute is worded with its emphasis on “any benefit,” offering a cup of coffee for a cake recipe constitutes a crime.
Boyles stepped off the witness stand at a few minutes after 11:00 o’clock, and Tidball ordered Lozow to put on his next witness. Unfortunately, two of his next witnesses did not show up, Dan Glick from Newsweek and Fleet White. One witness did, Dan Recht, attorney for The Globe. He had filed a motion to quash the subpoena to testify at my trial, based upon his attorney/client privilege with The Globe.
The judge sent the jurors to the jury room, ostensibly for a morning recess. While the jury sat about, isolated from the events unfolding in the courtroom, Dan Recht, representing himself, asserted his attorney/client privilege regarding his client, Globe Communications, Inc. He stated that any advice he gave Lewis came as a result of the editor’s employee status and never in an individual capacity.
Lozow had wanted two pieces of information to come before the jury from Recht. First, that it was through Recht’s trust account that Lewis received the $30,000 to buy the ransom note. That wad of money in Recht’s trust account separated me from any act of bribery. Second, that Recht and I had discussed the issue of bribery in general prior to Lewis’ and my visit to the Vacca household.
Recht had standing in the legal community as an experienced criminal defense lawyer. His memorandum to his client, Globe Communications, Inc., as well as his advice to me, was that he didn’t believe that Lewis had committed commercial bribery.
A confusing legal battle raged in Tidball’s courtroom for the next one and one-half hours over what she would allow the jury to hear regarding the knowledge and involvement of one of The Globe’s top notch lawyers in Lewis’ attempt to purchase the ransom note. When Recht had been called to testify before the grand jury in Jefferson County, he had asserted his lawyer/client privilege. Hall challenged that assertion and ultimately another judge in Jefferson County ruled that he must testify. Recht then advised Hall that he would assert his Fifth Amendment right against self-incrimination. Hall then offered Recht immunity from prosecution if he would testify against Lewis and me. As Recht explained to Tidball:
I don’t believe I ever did anything wrong in any of my representation going back four years in this case. I requested and got transactional immunity because sometimes people that did nothing wrong still get prosecuted. And that’s what I was afraid of. And that’s why I wanted the immunity, which I obtained.
Tidball declined to permit Recht to testify to his opinion that Lewis had not committed commercial bribery. However, the testimony regarding the $30,000 ultimately came to light.
The Court: Good afternoon ladies and gentlemen. Sorry to keep you waiting. I want you to know we worked straight through until after 12:30, and we’re back here at 1 o’clock, because we’re addressing legal issues. So we’ve been working very hard in your absence. Unfortunately, we can’t always predict exactly when we need you back.
Recht was called to the witness stand and gave his respectable credentials under direct examination by Lozow. He testified that he was unaware that Donald Vacca had the ransom note on April 1, 1997, that he received $30,000 from The Globe through his attorney’s trust account and that he gave the money to Lewis. Lozow also asked if Recht had received a grant of immunity from prosecution, and for him to explain for the jury what a grant of immunity was.
… There came a time when the prosecution was investigating The Globe, and Lewis and Mr. Miller. And I was concerned that although I was then and am now perfectly confident I had done nothing wrong, I wanted to make sure that the government also agreed I had done nothing wrong. And the government, the prosecution, in essence, assured me that they would not be prosecuting me. That’s what a grant of immunity means.
In essence, Recht was admitting that he would testify when the grand jury prosecutor wanted him to testify against someone in order to save his own skin. His decision was not only in his best interests, but a less costly decision than I had made by refusing to testify.
The next witness was Dave Williams, a private investigator long associated with Haddon and his law firm in the 10th Avenue mansion. Dark-haired, bearded and stocky build, Williams is the consummate professional witness. He testified begrudgingly, giving Lozow one, two or fewer than five word answers. Still, he did admit that Haddon had hired him on behalf of his clients John and Patsy for purposes of impeachment of my character and that he had sent his work to the Jefferson County District Attorney’s office.
Since White and Glick, although subpoenaed, had not shown up, my testimony would come next. The judge cleared the jury from the courtroom again. She advised me that I did not have to testify and inquired into my mental state. She knew I needed medications for treatment of coronary heart disease and depression. She asked if the prescription drugs might interfere with my ability to testify. “I’ve been anticipating this day for two and a half years,” I said. “I’m fine. I can testify today.” I explained that I was not taking any anti‑anxiety medication so that I would have a clear mind when I testified. The jury returned, I faced them, and began.
I testified as to my background: high school, college, graduate and law school; my work as a private investigator and training as a handwriting expert, the sale of my investigations business, the practice of law, the separation from my wife and the heart attack. Lozow had tried to bring my resume into evidence while Williams testified, but Tidball had ruled against it. So now, I explained the contents of my resumes; one as a handwriting expert, the other as a writer.
My history as a journalist, writer, investigator, teacher etc. on the record, we came to March, 1997 when I met Lewis. I explained how I met him through my former membership in the World Association of Detectives, how I met him in person in my mother’s former bedroom that I was then using as an office. I told how Lewis had presented me with a wish list of what he wanted regarding the Ramsey case and that on the top of that list was the ransom note. Lewis was impressed with my experience as a journalist and writer, lawyer and handwriting expert, and he hired me at my billable rate of $150 per hour.
I told the jury I had worked as a handwriting expert for 10 years. I knew who might have the ransom note and the most likely prospect was Donald Vacca.
Mr. Lozow: Did you, any time between March and April the 1st, know with any certainty where the note was?
Mr. Miller: I did not know.
Mr. Lozow: Did you know with any certainty who or if anyone had been hired in the Colorado area to analyze the note?
Mr. Miller: I did not know.
Employed by Lewis and The Globe, I had contacted Vacca for an appointment and when we met I introduced Lewis only as “my client.” Vacca led us downstairs, where we made some small talk, and then, how:
Mr. Lewis launched into a very unusual interviewing technique. He said something to the effect of let’s cut to the chase, I know you’ve got some documents on the Ramsey case, and I’m willing to pay you for them.
I told the jury that I was “stunned” by Lewis’ approach, and described how the offended Vacca threw us out of his home, thus betraying his possession of the note. Lewis was then determined to go back to Vacca for the note. I declined any further involvement and warned Lewis that he should not return to the Vacca residence.
The jury heard about my interview with Burkhalter, and shortly after that I learned that John and Patsy’s investigator, Williams, was investigating me from Wally Barrett, whom Williams had called for information. I explained how Recht and I concluded that no crime had been committed at the Vacca residence and that I was required to assert the attorney/client privilege in not identifying Lewis.
Hall objected to bringing in the opinions of Recht. Tidball sustained the objection. But, her usual demeanor of calm and prudence had been shaken and her face flushed. She called a ten minute recess although my testimony was nearly complete. Lozow then had to engage in another battle on the technicalities of the hearsay rules and their exceptions.
Tidball objected to Lozow’s not giving Hall proper notice of the testimony he planned to elicit. To which Lozow replied:
Mr. Lozow: I don’t hear Mr. Hall making that objection. The Court’s making it for Mr. Hall.
The Court: I’m not making any objection for Mr. Hall, I’m reading the rule, which says that –
Mr. Lozow: It says notice, but that’s Mr. Hall’s objection, not the Court’s. If Mr. Hall thinks he’s hoodwinked here. . .
The Court: If he wants to waive that [notice], that’s fine. Why don’t we hear from Mr. Hall and find out what his position is.
Several reporters had been covering my trial from the beginning and they had been sitting on the defendant side of the gallery while the police officers had been sitting on the prosecution side. During the two days of the trial thus far, Judith and a friend, had been sitting immediately behind me, their heads nodding approval during my testimony. Several more of my lifelong friends showed up to lend their moral support. Wally Barrett also sat in the front row, and several lawyers and staff personnel from Lozow’s office had taken seats among the press. The jury couldn’t help but notice the gallery nearly full on the defendant’s side of the courtroom. That encouraged me.
When the jury returned to the courtroom for the conclusion of my direct examination, Lozow took me through the spring of 1997 when I was advising Lewis to try to behave himself and Lewis’ determination to take no advice. I testified to my identification of Patsy as the author of the ransom note.
Mr. Lozow: And were you public with regard to your opinions?
Mr. Miller: I was outraged by the murder of JonBenet Ramsey, and I was very vocal in my outrage in how this child had been murdered.
Hall then had his opportunity to cross-examine me. He began by trying to establish my friendship with Lewis. Sadly for me, I had to deny friendship. I still cared a great deal about Lewis, but I had not spoken to him for months, not since before November, 2000, when his company bribed him out of charges in Jefferson County and left me to stand trial for his crime. I simply could not call him a “friend” at that moment.
Hall next wanted to lay a foundation for my knowledge that Vacca had the ransom note. I couldn’t help him with that because I hadn’t known if Vacca had the note until his crossed arms, anger and surprise revealed his possession of the note. All I could do was to guess. Hall tried to establish that as a handwriting expert I had taken cases from lawyers and that I would know for certain that, if Vacca had the ransom note, I would know that the John and Patsy’s lawyers had provided it. I didn’t know that. I had worked on or supervised perhaps hundreds of handwriting cases, and, in fact, most of them didn’t come from lawyers. The prosecutor then tried to establish that by setting an appointment with Vacca I knew I was violating the fiduciary relationship between Vacca and the John and Patsy’s lawyers.
Mr. Hall: Now, Mr. Miller, if Mr. Vacca had gotten that note from the Ramsey lawyers he couldn’t have discussed that with you, could he?
Mr. Miller: No, he couldn’t have.
Mr. Hall: And he couldn’t have submitted to an interview with Mr. Lewis, could he?
Mr. Miller: I think he could have.
Mr. Hall: You’re telling us, sir, that if Mr. Vacca had received the ransom note from the Ramsey lawyers he could have talked to [Mr. Lewis] about the note, and talked about the examination?
Mr. Miller: That’s why we have a First Amendment, freedom of the press. That’s why we have a press, so they can ask the question.
In my practice sessions with Leidner, Lozow and others who helped me prepare for my testimony, I had been reminded again and again not to dance with Hall by failing to answer his questions or to lose my temper. Those warnings came to mind as he peppered me with accusatory questions, like:
Do you think that journalists have a right to pay people money to violate their fiduciary duties and get news worthy information?
It came as a complete surprise to you that he had gone up to the Vacca residence for the purpose of trying to buy the note, is that right?
I could explain to the jury only that I was surprised by the way the interview had proceeded and by the crass manner in which Lewis had handled it. Hall wanted me to state that I had arranged the meeting with Vacca so that I could discuss the Ramsey case, and to that, I had to remind him, repeatedly, that I did not come to interview anyone, but had only arranged an appointment for a journalist to interview a source.
Mr. Hall: Mr. Miller, did you know, or did you not know, that during the conversation with Mr. Vacca on the afternoon of April 1, 1997, Mr. Lewis intended to ask Mr. Vacca for the note?
Mr. Miller: I did not know.
Hall asked Tidball to remove the jury from the courtroom so he could take up the issue of my personal journal. I had anticipated this. Of course, I was offended that Hall and the CBI had emotionally abused my children, with the voluntary assistance of an emotionally wrought ex-wife, to gain access to the diary. Hall never did want any court or, more immediately, any juror, to realize the illegal circumstances under which his office had conducted itself to take possession of my journal. Now he would try to put it before the eyes of the people in that courtroom as if he and the police had every right to my diary within the laws they were sworn to uphold. While I excused myself to use the restroom, Lozow argued for the exclusion of my journal. I had written about April 1, 1997,
I have a lot of work to do there. Home by 1:00 o’clock or so to straighten up before Craig Lewis came by at 2:00 o’clock to try to get some documents from Don Vacca. That wasn’t pleasant, but it was interesting.
At issue then was the time at which I wrote that entry, which turned out to be several days after the event. In other words, it was a summary of events, not a description of things to come. According to Tidball, “the issue is whether or not that statement is a clear and direct contradiction to the defendant’s statement …” Tidball, finally, ruled in my favor, finding the statement, “at best ambiguous” as to what I knew Lewis was going to do.
The jury returned to the courtroom and their frustration at having been prevented from hearing information of their interest to their determination of my guilt or innocence was palpable. A few minutes later my testimony ended, sadly enough, by having to deny my erstwhile friendship with Lewis.
After I left the witness stand, Tidball called Lozow and Hall to the bench for a sidebar conference while the jury waited. Gary Lozow and Jane Tidball began arguing over the failure of Glick, Thomas, and White to respond to subpoenas to testify at my trial.
The Court: This morning we lost about three hours because of your witnesses that weren’t available on the subpoenas. We end up dealing with legal issues and sending the jury to a long lunch, that doesn’t have to do with this.
Mr. Lozow: That’s a misstatement of the record, you didn’t lose a minute because somebody wasn’t here, Judge. Mr. Recht was here on time, there was a series of legal issues, I’ve had witnesses every single moment.
The Court: That’s not true.
Mr. Lozow: Let me make a record outside the hearing of the jury.
It was 4:30 in the afternoon, and I was exhausted from the several days of tension and finally my own testimony. Tidball dismissed the jury for the rest of the day. The argument between her and Lozow regarding wasted time and witnesses who hadn’t appeared continued. Thus ended the second day of my trial with Tidball wasting time arguing that time was being wasted.
Lozow and Leidner had been delighted with my testimony. My friends in the gallery were pleased that I had been able to convey the truth to the jury, the truth that had meant so little to the authorities who had wanted to convict me. Despite the absence of several witnesses subpoenaed for my trial, Lozow made the decision to rest my case based on the strength of my testimony and the absence of any evidence of any guilt.
The following morning came closing arguments, but not before hours of wrangling over jury instructions. The first case I worked on after receiving my license to practice law was an appeal of a Driving Under the Influence of Alcohol. I won the appeal, and I had developed one of the arguments that brought about that moment of success by reviewing the jury instructions which, I argued, had prejudiced my client. Mundane and boring as jury instructions may seem, they are crucial to determination of truth and proof.
Lozow objected to the jury instruction regarding “complicity.” That instruction advised the jury that if I knew that Vacca had the ransom note and that Lewis wanted to purchase it, I was as guilty as he of commercial bribery. During the trial, Tidball had allowed no testimony or evidence regarding the checkbook dismissal of Lewis’ case. The jury never learned that through his dismissal, Lewis was free from criminal charges. Still, the jurors were told to determine if I was a “complicitor.” The language in several other jury instructions that Hall had revised and reworked to fit his new theory of his case was also permitted over Lozow’s objections.
As Tidball ruled in favor of Hall again and again on the morning of the third day of my trial, Lozow renewed his motion for a judgment of acquittal, asserting that Hall had not proven his case and that the charge against me should be dismissed due to the absence of evidence. In making that motion, Lozow said, “I submit this is exactly the kind of case that is cancer in the system and one that taints the system.” Tidball denied the motion, and the jury was recalled to the courtroom to hear closing arguments and their instructions.
Act V: Closing Arguments
Hall began by thanking the jury for their patience and attention. Without them, he said, “we sure couldn’t do our job.” He explained that at the core of the case was a duty of loyalty and he defined that duty of loyalty as existing between Vacca and the lawyers for the Ramseys. He claimed that I admitted to my knowledge of the relationship when I was interviewed by Burkhalter and that I knew of it as a matter of common sense; that the only way Vacca could have obtained the ransom note was through the John and Patsy’s lawyers. He said I misled Karen Vacca during a telephone call on March 31, 1997 to obtain an appointment with her husband and then followed up on that deception by going to the Vacca household the following day. He reminded the jury that I had worked for a price of $150 per hour, but that Vacca “didn’t have a price.” And, Hall said that my defense was that, “You can’t hold me responsible for what Lewis did.” Then, he advised the jury of the complicity instruction. He then compared me to the driver of a get away car and Lewis to a bank robber.
Lozow was not nearly so brief. He began by telling the jury that the people had to prove beyond a reasonable doubt my guilt. After two days of witnesses, Hall’s closing argument relied on my interview with Burkhalter. In that interview, six weeks after the incident, I had said clearly enough that I knew Vacca had the ransom note – and, by then I did. Lozow asked what evidence Hall had produced that I knew what was going to happen in that room on that date. He urged them to read the grand jury indictment.
What they said in the grand jury room is that they [Lewis and Miller] knew these lawyers were involved before they went there, and that he [Miller] himself, he himself said his company wanted to buy the documents. Another blatant untruth, just even in the charging document …
Knowing that he had the evidence on his side, Lozow reviewed the testimony of each witness, and how the testimony had failed to prove any guilt, starting with Karen Vacca. She had been contradicted by her husband and Burkhalter throughout her testimony. She said she recalled that I had said that I wanted Donald Vacca to perform a questioned document examination and that she kept records of telephone messages which insured the accuracy of her memory. When her husband brought in those records of messages subpoenaed by my lawyers, there were no records of our conversations. She claimed she told Burkhalter that I had given her an incorrect facsimile telephone number. Burkhalter said that I hadn’t. And, she claimed better than a 50% certainty of her identification of Lewis in the photo lineup. She had admitted that she was incorrect under cross-examination. And, finally, Karen Vacca had claimed that she had discussed issues of my breaking the law, and not simply ethics, during the visit by Lewis and me.
Now, why is this important? Well, what Mr. Hall wants you to start your premise with, in terms of his proving this beyond a reasonable doubt, is somehow we misled Mrs. Vacca. And, if we misled Mrs. Vacca, we must be a felon.
Lozow pointed out how Karen Vacca’s memory was “aided by the passage of time, or not aided.” And, accurately enough, Lozow stated that as a handwriting expert, I was a competitor of Donald Vacca, which strengthened her loyalties to her husband and her story.
When Lozow reviewed the testimony of Donald Vacca, he began by saying that his and my testimonies were the same in many particulars. Unlike that of Karen Vacca, Donald Vacca’s testimony did not indicate in any way that I had tried to mislead him. But, like his wife, he contradicted himself. He claimed that he was surprised by the actions of Lewis, yet he testified that two days earlier he had received a phone call from someone who had asked about the Ramsey ransom note.
He wants to tell the jury he’s so shocked, this is a police officer, he’s testified as an expert many, many, many times. Not once, not twice, he’s done literally hundreds of cases. He’s a professional witness. That’s how he earns his living.
Vacca had also testified that there was an agreement between himself and the lawyers, signed and memorializing his “fiduciary” relationship. Yet, when Lee Foreman testified, he explained that it was a non-publishing agreement that transferred a copyright interest. “This isn’t about a copyright case.” The jurors would have a copy of the non-publishing agreement that had been admitted into evidence and Lozow reminded them to note that the Ramseys’ lawyers’ names were not on the agreement.
Vacca’s suggestion, and that of Hall, was that the only way the ransom note could have been given to a handwriting expert was by John and Patsy’s lawyers. Lozow punched hole after hole in that theory. Could Peter Boyles’ unnamed source have given the note to Vacca? How about the people from Newsweek? Dan Glick, the magazine’s reporter, hadn’t shown up to testify that it hadn’t arrived through him and the jury knew that. What if Patsy Ramsey’s sister, whom Bill Wise said had a copy of the note, had given it to Vacca? More important to the injustice meted out to JonBenet, “… Because as we suggested through Mr. Foreman the fact that the lawyers would have the note in a case where the people were being investigated as homicide suspects that early in the process is almost unheard of.”
When he summarized Forman’s testimony, Lozow got to the point of the prosecution, and my indignation:
“Mr. Foreman said we were eager, that’s the word he used, to make sure that Mr. Miller was prosecuted. We were eager.”
We were so eager that we paid, our law firm paid money to a fellow named Dave Williams, whom I had to subpoena, to look with a magnifying glass at this fellow, upside down he said, for two months? If someone could look at every idiosyncrasy, every one of your relationships, what you did in your profession, what you did as a lawyer, how you raised your family, what you did in your divorce, what you did when you walked into the privacy of your home, how would you pan out? How would you do? And then gave it to this table [the prosecution].
The investigation by Williams had been for purposes of impeaching my character and my credibility in the Ramsey investigation. Lozow took John and Patsy out from the nicely parsed claim of being “under an umbrella of suspicion” to identify them as the “prime suspect targets of the case.” While the team of lawyers working for the Ramseys had gone through my life with a microscope to impeach me, Foreman had demeaned my training as a graphologist as a “junk” science. Lozow had forced him to retreat from that position on cross-examination. My lawyer also reminded the jury that I was a human being, although Foreman had “flippantly” treated me as a “subhuman.”
The prosecution’s last witness was Burkhalter, whom Lozow reminded the jury was a hypnotist, a bomb expert and a fellow employee of the Denver Police Department for 20 years with Donald Vacca, the “victim.” Burkhalter had testified that after this initial investigation he told Vacca that he didn’t believe a crime had been committed. That didn’t satisfy either Vacca or the John and Patsy’s lawyers, so Vacca and three of the lawyers wrote a letter demanding my prosecution.
And what do the lawyers do? … They tell Vacca to write a letter to Dave Thomas. And try to persuade Thomas to file charges against that guy. And when that doesn’t work, the law firm writes its own letter the next day with [Patrick] Burke’s name on it. Who is, by the way, a lawyer for Patsy Ramsey, to try again to get this office to act…. since they mutually respect a lawyer like Hal Haddon. . . Why did they write that letter? That’s patronage, that’s taint, that’s good old boy, that’s do it for us.
Like the other witnesses for the prosecution, Burkhalter contradicted himself. He had testified that Thomas and he received letters all the time from lawyers seeking prosecutions. Under cross-examination, he admitted that he had received two to four letters seeking prosecutions during his career, and Lozow pointed out to the jury that Burkhalter’s fudging on the witness stand is “what’s wrong with this case. It’s what’s tainting what’s happened in this case.”
During the one-half hour or so interview with Burkhalter I had said that his investigation was a “witch hunt.” Lozow elaborated on the witch hunt that was going on with me and its effects.
Close enough. It was a Miller hunt. And then interestingly enough, with some vision, he [Miller] says to this detective, do you know what it is to have the kind of authority and kind of all consuming right to accuse someone in this setting, and how the abuse of that power can compromise someone? What great vision Miller had. Because that’s exactly what happened.
Perhaps, most important to my defense, Lozow pointed out how Boyles, and others inside of and outside of the media, had seen the ransom note. John and Patsy’s lawyers had an agreement with the Boulder Police Department not to release the ransom note, but the lawyers for Patsy had decided to release it anyway. “This note, this biblical-polestar item is like toilet paper, you know. It’s everywhere. It’s being used by everyone. Everybody’s taking a look at it.”
He asked the jury how Dan Glick of Newsweek and Anne Bardach of Vanity Fair got a hold of the note. He continued to remind the jurors of the first witness that he put on in my defense, John Fernie, who had seen the note, and witnesses who had not appeared, Glick, Thomas and White, who had access to the ransom note. He explained why he had called Wise, the second in command in Hunter’s office, to testify as to who they knew had access to the ransom note, including Patsy’s sister. And, he reminded the jury that Foreman had denied that Pam Paugh had a copy of the ransom note.
Dan Recht testified, and Lozow made the best of him:
Recht tells you, among other things, he asserts his privilege, you heard him exercise his privilege. Recht is the fellow who is the lawyer for The Globe. The Globe. It’s like a huge elephant, but it’s absent from the courtroom. I look around, is The Globecharged? Who really had the dog in the hunt? The Globe. Who really wanted the note publicized? The Globe. Who wanted to do the work on the note? The Globe. Never charged. And their lawyer, obviously enough, tells you he was in the business, he’s a criminal defense attorney, he had been on national TV settings, he is the head of the Colorado Criminal Defense Bar for a period of time, the president of it. And he says on April the 1st, 1997, he didn’t know that Vacca had the note. He also got $30,000.
Lozow went on to say that Recht had good reason to assert his attorney/client privilege, remarking about the power of the prosecution to charge someone in such a setting. “And any common sense person would have done the same thing no matter how innocent they are.” True to form, Hall interrupted the closing argument at that point. He asked to approach Tidball’s bench. Lozow apologized if he had offended anyone, and Tidball admonished Lozow not to continue with his argument that innocent lawyers have good reason to fear the power of the state to file charges.
My lawyer went on to the testimony of Boyles, my public statements that were “inconsistent with the Ramseys’ innocence,” and my public handwriting analysis of the ransom note and Patsy’s involvement in the staging of the crime. Boyles also confirmed that, although he himself would not pay for information, that it’s done all the time as part of the exercise of the press’ First Amendment right. And, he had seen the ransom note before its national publication.
Do I think there were other Peter Boyles who may have inferentially seen the note? Yes. Do I think the evidence indicates other people had copies of the note? Yes.
Tidball seemed to be concerned that she would never achieve my conviction based upon the son-of-a-bitch rule, so, she interrupted Lozow, called him to her bench and instructed him to finish up. I gasped when she did that. It was, frankly, my day in court, not hers. Her conduct, rude in terms of courtroom demeanor, surprised not only me, but those in the gallery and many in the jury box.
Lozow hurried through the testimony of David Williams and the failure of his thorough investigation to impeach my character. My resumes had been tendered to the jury as evidence and my lawyer asked, “Do you find an unlawful background?”
Lozow remarked on the heart attack I had suffered, it’s profound affect on my life – not as a matter of sympathy, “But that’s who The Globe found as the person working on this case in mid-March, 1997.” He recalled my testimony, my relationship with Lewis, the attempt to purchase the ransom note by Lewis and my refusal to be further involved. Lewis went back later and offered $50,000 for the note. He told how I had gone public with my handwriting analysis of Patsy’s fake ransom note and two years later I was indicted for having done so.
So I want to close with one or two thoughts … I suggest to you that this case, and the evidence in this case, and the facts of this case are exactly the type of case that there is a blessing to have the right to a jury trial. There is a blessing that the power of law firms’ and prosecutors’ office are tempered by jurors. And tempered by rules of law.
I was very pleased by Lozow’s closing argument, and not surprised when Hall, and his complicitor, Jane Tidball, again pushed the rules of ethics. In closing arguments, the prosecutor speaks first, the defense second and the prosecution then has the last word and opportunity to refute the arguments of the defense. Rules govern every aspect of a trial and Hall knew them. He began his last chance to speak to the jury by quoting from another judge in Jefferson County who said, “You lawyers tend to make a mistake, you think that it’s about you, and it isn’t.”217 The gist of that statement is that another judge in the district would see me as guilty. Lozow objected to the use of the opinion of another judge, but he was overruled. Next, Hall added his own personal belief that it wasn’t necessary for Lozow to have spent nearly an hour giving a closing statement. Lozow objected and was overruled. And, last, Hall told the jurors over Lozow’s objection, that my character was not at issue, which, I felt, misstated the facts he had presented.
Act VI: The Verdict
The jury had been given their instructions, they had heard the closing arguments and had been allowed to leave the courtroom for lunch before they convened to determine my guilt or innocence. Once they left, Lozow made a motion to have my case dismissed based upon prosecutorial misconduct. Tidball disagreed and his motion was denied.
I went to lunch with my fiance, Judith. I saw the jurors at the salad bar and avoided any contact with them. I wasn’t hungry, nor was Judith. Instead, Judith pulled a deck of cards from her purse and we played poker. Jane Tidball, flitted through the cafeteria wearing running shorts and flaunting a great pair of legs and a trim little body. The lunchroom emptied. Judith could not lose a hand at cards.
“I hope my luck is better upstairs than it is here,” I said, as I lost, and lost and lost. I had never lost so many hands of poker in a row. Still, I had a sense of confidence that I had been well represented and that I would be found not guilty. After all, The Globeand I had invested a middle-class fortune in my defense. That was a lot of “justice” to buy.
As we left the cafeteria, I held hands with Judith. The next few minutes would define whether we would be married, “sooner” or “later.” As we stepped off the elevator, Leidner saw us. “Perfect timing.” he said, “The jury’s in.”
I took a deep breath, steeled myself and let go Judith’s hand as Lozow approached me and put his arm around my shoulders. “If it’s a guilty verdict, don’t worry, we’ll appeal it.” Easy for Lozow to say. I had been hopelessly footing the bills for the last eight months. An appeal seemed about as likely as buying a trip to the moon.
The press was everywhere, cameramen and reporters in the hallways, filling the gallery in the courtroom, looking me over with curiosity. I had shouted profanities at the cops and Dennis Hall in the Jefferson County Hall of Justice. I found the ransom note for the tabloids. I had accused Patsy Ramsey internationally of authoring the ransom note. I had stated my outrage at the murder of JonBenet. I had been a lawyer. I had argued that my case was a matter of Freedom of Speech, and, more importantly, to the journalists in the courthouse, Freedom of the Press.
I took my seat at the defense table, somewhat overcome with exhaustion, and looked to the men and women in the jury box. I knew at that moment the verdict. The foreman of the jury handed their decision to the bailiff, who handed it to Tidball. In a monotone that represented her disappointment at the decision of the twelve citizens, she pronounced softly, “not guilty.”
Finally, my life would go on. I would return to the practice of law with a vengeance for justice in the courtroom. I would marry Judith Phillips, the love of my life. And, I will forever wonder at the greed, the corruption and the injustice that denied JonBenet a trial and leaves her wholly abandoned in her Georgia grave.