JonBenet: Inside the Ramsey Murder Investigation (16 page)

If Christopher Courtney and Tattoo Bob were strikes one and two, Thayne Smika should have been a big strike three. In 1983 Sidney Wells, the boyfriend of Robert Redford’s daughter, was murdered by a shotgun blast, and detectives arrested Smika and recovered a shotgun and matching shells. Hunter entered into a secret agreement with the defense lawyer that the grand jury would not return a true bill against Smika “for
any
criminal conduct.” Members of the victim’s family, the arresting detectives, and the grand jurors were unaware of Hunter’s written pledge, and Smika vanished. He hasn’t been seen since, and police are seeking still another warrant for his arrest.

Despite his electioneering boast, Hunter’s courtroom skills were modest. In 1979 he decided to make an example of a woman who smoked marijuana with some underage boys and took her to court on a charge that could net her fourteen years in prison. After Hunter’s opening statement, the defense lawyer said the charge against his client was incorrect, the judge agreed, and the woman paid a $100 fine and walked away, leaving Hunter standing there with a law book, trying to find the amended statute.

His last major case came when he was named special prosecutor in neighboring Adams County, where the sheriff faced a range of serious charges. Hunter offered to drop the felony counts if the sheriff would resign and plead guilty to minor charges, but a judge rejected the deal. Hunter lost at trial and retreated from the courtroom.

He had not personally tried a case in more than a decade.

Any other prosecutor turning in such performances would have been run out of town on a rail, but Hunter was a deft politician who stayed closely attuned to voter sentiments. For example, in one recent year, thirteen rape cases were filed, but there were no trials, and half the rapists didn’t spend a day in jail. The DA did not pursue a hard line on sex crimes until the Boulder County Rape Crisis Team released a damning report pointing out among other things that out of sixty cases of sexual assault on children, only
one
offender went to prison. Thereafter, his office took a hard line on sexual assaults. But in 1996, a university student at her twenty-first birthday party had too much to drink. The innocent virgin was horribly raped by the disc jockey and was impregnated by the attack. The detective was able to collect DNA, irrefutably linking the suspect to the crime. In most any other prosecutor’s office, this assault on a blameless victim would ordinarily bring a lengthy prison sentence. Our DA’s office declared, “It’s too early to give up on him” and allowed the rapist to forfeit only his weekends for two years in the local jail.

Overall, little changed. Boulder was doing fine economically, life was good in the shadow of the Flatirons. Alex Hunter kept getting reelected, given a free ride by the local paper, which seemed to me to have abrogated its watchdog role. Republicans chided Hunter for being the Monty Hall of district attorneys, likening him to the host of the TV show Let’s Make
a Deal.
But the GOP was such a minority in liberal Boulder that they could not beat him and eventually quit trying. There would be no new broom sweeping through the DA’s office.

Public defenders and defense attorneys had free access to Hunter’s office and were allowed to wander the halls, retrieve case files, and use the office copier while the drumbeat of plea bargaining continued. In many other cities they would have gotten that far only by appointment, and then only for a specific piece of business.

The death penalty continued to elude the DA’s office. Randy LaFarge was stabbed fifty times, and Hunter would not seek the death penalty against the murderer. Scott Mutchler fatally stabbed a man and his ten-year-old son, and Alex Hunter chose not to go after the death penalty. Michael Grainger killed his sleeping wife and got three years.

Michael Bell murdered a convenience store clerk, then shot to death a man sleeping in his car, then went into the mountains and killed two more people and wounded three others. The mass murderer was captured after the biggest manhunt in Boulder County history. Despite facing multiple counts of first-degree murder and having witnesses to testify, Bell dodged the death penalty by accepting a life sentence. Anywhere else, the only question would have been in which arm to stick the needle, but Hunter and Pete Hofstrom, his chief trial deputy, won over the families of the four people Bell murdered by explaining the difficulties of a death prosecution.

Brittany Gomez, only six months old, was left blind and retarded after being brutally shaken by her baby-sitter, who drew only probation and ninety days in a halfway house after pleading to felony child abuse. Then Brittany died, the case was ruled a homicide, and murder charges were filed. The baby-sitter again pled guilty in exchange for no prison time. She killed a child and never spent a day behind bars.

Accordingly, the strain between the police and Hunter’s office existed long before JonBenét was even born. We were all too familiar with the prosecutors’ familiar bleat that there was “insufficient evidence” to go to trial, or that “a jury won’t convict.” I believed they had been so weakened in trial experience after decades of plea bargaining that they were afraid to take their chances in court.

Of the twenty-three murder cases filed between 1992 and 1996 in Boulder County, none went to trial. All were plea bargained. Pete Hofstrom told a reporter in 1996, “I haven’t tried a case this year, and I don’t intend to unless absolutely necessary.”

So what was happening early in the Ramsey case did not shock any cops. It wasn’t just that the Ramseys had money, it was that the Boulder DA’s office did not embrace assertive and aggressive prosecution. The Ramsey case exploited weak points that had been in place for years, and the more the prosecutors tried to “build trust” with this defense team, the deeper they dug the hole. Several decades of their unorthodox thinking fell on us all like a ton of bricks.

Therefore, based upon years of experience with the DA’s ivory-tower office, where justice seemed to be an abstract concept, I thought it unlikely that the killer of JonBenét Ramsey would ever see the inside of a courtroom. Elsewhere, a tough DA would have told the defense lawyers nothing more than was absolutely required by law and would have applied pressure at every turn to bring a killer to justice. But to do so in Boulder would violate the culture of cowardice and tradition of timidity that were the hallmarks of the DA’s office. None of them were suddenly going to start looking like a gutsy prosecutor and adopt a “go-to-hell” attitude toward defense attorneys.

The coziness between the DA’s office and Team Ramsey was illustrated once again in early January when the Colorado Bureau of Investigation wanted to see more of Patsy’s handwriting. Pete Hofstrom brokered an unbelievable deal that she would not have to enter any law enforcement building, and she gave the sample not in the police department but at the kitchen table in Hofstrom’s home.

The chief trial deputy bantered easily with both Ramseys, showed off some of his memorabilia, and turned on the basketball game in his living room so that John would have something to do while his wife was writing. Hofstrom took a walk while the sample was being given.

It was so bizarre that even Chief Tom Koby, who rarely got upset, almost shouted at Hofstrom in disbelief when he learned of it. “You took a handwriting exemplar from a
murder
suspect in your
home
?”

The third member of the troika of prosecutors was Senior Trial Deputy Laurence W. “Trip” DeMuth III, a lanky third-generation Colorado lawyer and a firm disciple of the pleabargain philosophy of Hunter and Hofstrom. DeMuth, who favors bomber jackets and whom I often saw with his dress pants tucked into cowboy boots, was appointed to be the liaison man between the district attorney’s office and the police department and became the bane of our existence. He piloted a separate investigation, fostered the Intruder Theory of the murder, refused to sign search warrants, and in general drove us nuts. In my opinion, DeMuth had no idea how to prosecute this monster.

Boulder never wanted a tough police force. One of the most politically correct places in America, Boulder viewed cops with an arrogance bordering on contempt. Tom Koby fit the place like a tailor-made glove. Instead of being a strong police chief to balance the defense-friendly DA’s office, Koby became their quiet accomplice and counted Alex Hunter as a close friend.

Tom Kobalinsky (the name was later shortened to Koby) started his police career as a nineteen-year-old Houston patrolman in 1969 and rose to assistant chief there. When Chief Lee Brown left Houston to become the police commissioner in New York City, Koby was a leading candidate to replace him, but Houston wanted tougher policing, and his star waned as fast as it had risen. He looked for work elsewhere.

A month after I joined the Boulder Police Department in 1991, Koby was chosen from among 170 candidates to be Boulder’s top cop because the city manager wanted someone with “sensitivity.” From that moment, the department began sliding into little more than a social service agency as Koby spread his message of love and understanding. Before he even arrived, he sent each top police official a framed, hand-embroidered motto:
Police Unto Others As You Would Have Them Police Unto You.
What did that mean? Don’t arrest anybody because you wouldn’t like to be arrested?

Koby launched a sweeping reorganization that eliminated the military-style command structure of lieutenants and division chiefs. The next rank above sergeant was the new position of commander, which was just below the chief himself. It confused the chain of command and was a key reason that in the early hours of the JonBenét investigation nobody higher in rank than sergeant was in charge.

Koby abolished inspections, scrapped the rules and regulations book, and replaced the standard field training manual with a Value-Based Directive System that was more philosophical than practical. One principle declared, “We encourage creative problem-solving celebrating our accomplishments and acknowledging that there will be mistakes from which we can learn.” Partnership! Celebration! Individuality! It was blue-sky psychobabble. We called it “Koby’s Ten Commandments.” Internal Affairs investigators would go after a cop who was perceived as being rude to a citizen, even if the citizen was a bad guy.

Koby oversaw his social engineering experiment while sporting a rattail haircut, beard, and collarless shirt, and he brought in eccentrics more suited for a touchy-feely encounter group than life in a blue uniform. The street skills of patrol officers eroded. Experienced cops went elsewhere rather than be a part of the new culture. The system and the organization had worked because of discipline, standards, and accountability. Koby did away with it all.

Early in the Ramsey investigation, I was tracked down by Kris Gibson, the victim’s advocate coordinator, who held the equivalent rank and position of a police commander such as John Eller. She was nervous, which was not unusual when she got involved in a serious crime, since she had no law enforcement background. With long brown hair, beads, and anklelength dresses, she was more flower child than cop and was known around the department as “Granola.”

The Ramsey attorneys were saying that their clients, as
victims
, were entitled to see all police reports under the Colorado Victims’ Rights Bill. The Ramseys would not talk to detectives, but they met willingly with Gibson. Afterward she told me that she “did not get the intuition that they are involved.” I thanked her for that valuable observation.

Among Koby’s other hires was a woman he convinced to join the force, and although she could not meet training standards and hated being a police officer, he wouldn’t let her quit. Still another was a gang member who had fought with cops and had an outstanding warrant against him. The chief quashed the charge and allowed his new intern access to confidential files, including the identities of undercover officers.

Equally strange were Koby’s tactical choices, such as when he would order the SWAT team
away
from violent confrontations because he felt its presence would only “escalate the situation.” The chief once removed confidential surveillance videotapes of drug dealers from a detective’s desk and gave them to a community activist just before arrests were planned. The suspects mysteriously vanished. The detective resigned.

Koby could be charming over lunch, then bedevil you with some off-the-wall philosophy, such as why some police departments should be disbanded. It was amazing that so many good cops actually stayed around, because Koby did not like hard-chargers, and stood by while discipline, standards, and accountability walked out the door in the persons of a Who’s Who of the BPD’s finest.

So the department was totally unprepared when JonBenét Ramsey was murdered. There was no plan to handle a homicide of such magnitude. In fact, there were no plans at all—just Koby’s Ten Commandments.

Combined with the lackluster record of the DA’s office, we had a textbook example of how a justice system can rot from within to the point of being virtually ineffective.

When I returned from Atlanta and had an opportunity to look objectively at the matchup, Us vs. Them, I recognized that Team Ramsey was not only richer but much better organized than we were.

11

The only three ways to solve a crime are through a confession, witnesses, or evidence. We did not have, nor were we likely to get, the first, there were none of the second, and the material that we had pulled from the compromised crime scene, although powerful, could not stand alone in a Boulder court of law. We needed more.

That did not mean we were completely stymied, for we did have a growing amount of significant evidence that was pointing inside the house. Then we found some nuggets of useful information in the written replies to the sixteen questions that Detective Arndt had faxed to the Ramseys.

It was obvious that lawyers wrote the answers, which were crafted in stilted legalese—“best recollection,” “it is believed,” “the custom is”—so that there was plenty of wiggle room on every question. But there were definite inconsistencies in their stories.