Wrongful Convictions Blog

From: Rolling Stone

From confirmation bias in the 911 tape analysis to dissecting an ‘appropriate’ response to death, how CBS’s documentary didn’t tell the whole story

This month, two new TV documentary specials about the unsolved murder of JonBenét Ramsey have aired in anticipation of the 20th anniversary of the six-year-old’s tragic and mysterious death on Christmas night, 1996. Viewers who hoped to learn conclusive proof of who killed the child beauty queen sometime after she was put to bed in her Boulder, Colorado, home were likely disappointed. Two decades later, and the debate over whether it was the Ramseys or an intruder rages on, with A&E and CBS taking startlingly different positions.

Though each promised new exclusive details, both programs largely relied on the available evidence gathered during the investigation and interviews with members of law enforcement involved in the original case. As was the case in 1996 – and every year since – the interpretation of that evidence remains at the center of this unsolved crime. A&E’s documentary, which maintained that the Ramseys were rightfully exonerated by DNA evidence in 2008, concluded that because the intruder theory was dismissed early on by Boulder police, there simply isn’t enough evidence to name a suspect without a complete reinvestigation.

A complete reinvestigation is what CBS’s The Case of: JonBenét Ramseypromised, but the only thing they delivered was a witch hunt that culminated in naming Burke Ramsey, JonBenét’s then nine-year-old brother, as her killer, and implicating John and Patsy Ramsey in a coverup. (Burke Ramsey, now 29, appeared on Dr. Phil last week in his first-ever public interview, and insisted that neither he, his father John nor his late-mother Patsy has anything to do with JonBenét’s death.)

Absent any new physical evidence or meaningful new witness statements, the fruits of this reinvestigation, led by former FBI agent and criminal profiler Jim Clemente and behavioral analyst Laura Richards, were almost entirely subjective, at times dangerously misleading and dependent on a flawed police investigation that will very likely never result in the killer being brought to justice.

Here, three big ways CBS mislead viewers with their reinvestigation into JonBenét Ramsey’s murder

Confirmation bias, selective hearing and the misleading 911 call analysis
The first step in Clemente and Richards’ reinvestigation was analyzing Patsy Ramsey’s 911 call, specifically an inaudible portion at the very end when the phone clicked but did not disconnect. Because the operator did not hang up, the call continued to record, but no one has ever been able to conclusively decipher the extremely muffled, inaudible voices heard faintly in the background.

But many have tried. One such example is the Aerospace Corporation, who in 1997, at the request of the Boulder Police Department, conducted a test of the 911 tape, but the results were never officially released. However, in 1998, the National Enquirer leaked the results, which were subsequently quoted in Larry Schiller’s 1999 book, Perfect Murder, Perfect Town: The Uncensored Story of the JonBenét Murder and the Grand Jury’s Search for the Final Truth, and former Boulder Police Detective Steve Thomas’s book,JonBenét: Inside the Ramsey Murder Investigation, in 2000.

Clemente and Richards made a vague reference to this analysis, but didn’t disclose that it had been leaked and that they were aware of its conclusions, as any investigator in this case surely is. Instead, they claimed they were going to use “more modern audio technology” to figure out how many voices were on the tape and what they were saying. Sitting in a recording studio, the pair listened as the engineer fussed with levels and knobs. As Clemente and Richards began to “figure out” what was allegedly being said and who was allegedly saying it, subtitles popped up on screen in a flagrant attempt to convince the viewers that they, too, could hear it. There were three voices speaking, they claimed, and one of them was Burke Ramsey, whom Patsy and John told investigators was asleep in his room the morning they discovered JonBenét was missing.

A cursory review of the Twitter reactions to this segment indicates that many viewers could not make out any of what Clemente and Richards claimed to hear. “In the headphones it was incredibly clear,” Clemente tweeted, the implication being that despite devoting substantial time to playing back the audio over and over again, viewers should just trust what Clemente and Richards said they heard.

The problem is, at least as far as the 911 call analysis goes, Clemente and Richards lost credibility by failing to disclose that the leaked results from the Aerospace Corporation’s analysis are word for word what they seemed shocked and awed to hear on the other end of those headphones. Here is what the Aerospace Corporation found in their analysis of that 911 call, according to a report in local newspaper the Daily Camera: “Those sources say enhancement of the tape reveals Burke’s voice in the background, asking his parents ‘What did you find?’,” the paper writes. “John Ramsey allegedly can be heard shouting to Burke, ‘We are not talking to you,’ and Patsy shouts ‘Oh my Jesus, oh my Jesus.'”

This is what Clemente and Richards concluded, verbatim. It’s not clear if and how their analysis is new or more advanced than what was done previously. Far more egregiously, not disclosing their knowledge of the conclusions of the Aerospace report misleads viewers about the purity of their own analysis by not addressing the significant risk of confirmation bias, the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories – a factor in the vast majority of wrongful conviction cases. Witness identification, recall of memories, evidence collection and analysis and forensic testing can all result in misleading or false results if precautions are not taken to prevent it. At the very least, the risk that confirmation bias can lead to selective hearing should be considered when weighing the significance of Clemente and Richards’ analysis of Patsy Ramsey’s 911 call.

Instead, viewers were subjected to their herculean efforts to isolate, amplify and translate this supposed bit of muffled dialogue as if it was just as brand new to them. And then they presented their conclusions as proof that the Ramseys had lied, and used Burke’s alleged presence as an excuse to add him to their suspect list.

Dismissing the DNA evidence entirely
Some of the forensic scientists and experts Clemente and Richards assembled for their investigative team, including forensic pathologist Dr. Werner Spitz and forensic scientist Dr. Henry Lee, offered some interesting and credible assessments of the physical evidence. For example, Dr. Lee did a demonstration that showed how a blow from a flashlight found on the Ramseys’ kitchen counter could have caused JonBenét’s skull fracture. And both Dr. Lee and Dr. Spitz disagreed with Boulder County District Attorney Mary Lacy’s decision to exonerate the Ramseys in 2008 based on new DNA tests which revealed the presence of unidentified male DNA from a single source on both JonBenét’s underwear and leggings. Dr. Lee explained how touch DNA is so easily transferred that it can show up on a brand new pair of underwear straight out of its sealed packaging, so his belief that the presence of unidentified male DNA on a little girl’s underwear could have come from a factory worker was convincing.

However, just because the DNA is not proof of an intruder or proof of the Ramseys’ innocence doesn’t mean the touch DNA is completely useless either, as Dr. Lee claimed. Regardless of how CBS regards its investigation, this is still an unsolved murder, no one in the Ramsey family has been proven guilty in a court of law and the intruder theory has not been conclusively ruled out. The absence of proof is not proof of anything.

While touch DNA is easily transferred, there are still scenarios in which a specific DNA match would be regarded as extremely suspicious and should be pursued further. What if the DNA suddenly matched a child molester who had never worked in a factory that manufactured little girls’ underwear and had no reason to have ever come into contact with JonBenét, her new underwear or any of her other belongings that the DNA might have transferred from? Touch DNA alone is not a reason to convict, but it shouldn’t be ignored as an investigatory lead. Dr. Lee’s bizarre conclusion essentially invalidated the usefulness of touch DNA in all criminal cases.

Overselling linguistic forensics and behavioral analysis as conclusive
Time and time again, Clemente, Richards, former FBI “linguistic profiler” James Fitzgerald and former FBI statement analyst Stan Burke, reached certain conclusions based on highly subjective analysis of the vocal inflections, body language, pronoun use, linguistic phrasing and human behavior exhibited by the Ramseys during the investigation. Everything from Patsy Ramsey referring to herself as “the mother” in the 911 call, to John Ramsey’s decision to pick up his dead daughter’s body, to the “appropriateness” of Burke Ramsey’s response to her death was scrutinized through the lens of the investigators’ “expertise.”

The Case of never made it clear that these areas of forensic science and behavioral analysis are viewed by the courts with varying degrees of acceptability and reliability, and with very good reason. Human behavior and language is not one-size-fits-all, especially with the introduction of trauma. Jim Clemente voicing his opinion that Burke didn’t respond or emote “appropriately” seems irresponsible, especially when presented as evidence of guilt.

The admissibility of linguistic forensics and behavioral analysis testimony is subject to a set of standards that may limit its scope or forbid it entirely in a court of law. In criminal cases, these methods are more likely to be used to eliminate potential suspects – not presented as proof of someone’s guilt.

Alas, the social media response to The Case of has been flooded with comments about how Burke is “weird” and “a total psychopath” who is “obviously guilty.” For Clemente and his team to stoke that mentality without any caveats has repercussions that go beyond this case. Human beings are naturally inclined towards relying on their emotions and intuition, so expert testimony and evidence that is informed by subjective assessments of what is and isn’t normal behavior can be incredibly convincing.

Moreover, Clemente and Richards presented themselves and their team of investigators as infallible, their expertise as inarguable and their opinions as indisputable facts. More than once, they made unproven, disputed or misleading statements without providing further evidence, like the claim that John Ramsey disappeared for an hour and a half the morning of the murder – in actuality, he was in his study and the Boulder police just didn’t notice. They also rushed to disprove alternate theories. After one attempt to get through a replica model of the basement window, Clemente and Richards concluded there could not have been an intruder because the spider web in the corner was “destroyed” and the real spider web in the Ramseys basement window was undisturbed.

Yet when laying out their theory for Burke Ramsey as the killer, these experts literally made up a story about Burke killing JonBenét (on accident or in anger, but probably unintentionally) by hitting her in the head with a flashlight because she took a piece of his pineapple. The proof? JonBenét had undigested pineapple in her stomach. Even if this theory had been proven back in 1996, at age nine, Burke would have been too young to be legally prosecuted in Colorado, and he certainly couldn’t be held responsible for any horrendous cover-up instigated by his parents. To unleash a witch hunt on him now without rock solid proof of guilt is a cruel ratings ploy.

CBS included a disclaimer at the end of their closing credits which acknowledged that the “opinions and conclusions … about how [the crime] may have occurred represent just some of the a number of possible scenarios,” and encouraged viewers to “reach their own conclusions.” This bare minimum of legal cover may be just enough to protect CBS from John Ramsey’s inevitable lawsuit – as his attorney Lin Wood has already suggested is in the works – but it likely went unnoticed by viewers. The repercussions of depending on such controversial evidence go beyond this case, as jury members (the majority of which are not educated in the law) are often asked to weigh similar evidence and testimony when deciding guilt or innocence. The Case of oversold the same flawed methodology that has manipulated juries and resulted in countless wrongful convictions, coupled it with cherry-picked evidence and an extreme case of tunnel vision in order to finger a nine-year-old for a 20-year-old cold murder. That’s disturbing and irresponsible, no matter who killed JonBenét Ramsey