by Michael Tracey

“Everything’s got a moral, if only you can find it.”

– Lewis Carroll, Alice in Wonderland

So on to the really interesting part: what has it all meant, what do I take away from this curious episode in my life, and from a decade-long involvement not just in the narrative around the murder of JonBenet Ramsey, but the cultural ecology out of which that narrative climbed?

Henry James once wrote that to be an American is a complex fate, a sentiment I’d like to amend by suggesting that to be alive is a complex fate, pulled asunder as we are by the competing forces of deep, unspoken Neolithic urges, the demands of the caring heart and struggles in usingdavid the Rational mind, all elements present in the World of JonBenet.

Three general issues suggest themselves: the first is what was revealed about the condition and nature of contemporary American culture; the second involves what might be called the mood of the public mind; and the third is the personal experience.

The Media vs. Justice

Perhaps the most serious issue which emerged, or was revealed, yet again was the relationship that now exists between two core institutions, the media and the judicial system. In fact, increasingly, and wrongly, these two elemental parts of this society as a democracy seem to be engaged in a danse macabre, where the law has become part of the entertainment industry, and where that industry is consistently fed and led by leaks from law enforcement. As I suggested in the opening sections of this essay, and in the email to David Mills, small but influential sections of law enforcement in Boulder willingly provided “information” from the investigation which had one clear purpose, to persuade the American people of that which the police department was utterly convinced, that John and Patsy Ramsey killed their daughter. That “information” was presented uncritically to a public only too willing to believe what they were being told. In effect, it seemed that what was illustrated here was that the very integrity of the rule of law is increasingly compromised by the role of ratings and circulation driven media.

The role of publicly constructed rumor and suggestion, publicly made falsehoods, through the mass media, the Internet and everyday chatter in people’s lives, raises a profound issue of law. The public verdict was of the Ramsey’s guilt. If one thinks of this in terms of the proper demands of the law, any case of guilt has to be demonstrated beyond a reasonable doubt. Any conviction on less than proof beyond a reasonable doubt is constitutionally infirm under state statutes and the Constitution. At the heart of this lies the notion that guilt beyond a reasonable doubt cannot be premised on pure conjecture. The jury has to consider, as does any appellate court, whether the evidence, considered most favourably to the State, was such as to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. Can the jury rationally choose the hypothesis that supports guilt rather than the hypothesis which is consistent with innocence?

The question which needs to be considered in this context is whether the media coverage of this or any other case is prejudicial and therefore harmful to the basic rights of the accused because of the precise way in which it nurtures, even advocates, pure conjecture that inhibits the ability to look at the evidence rationally. What was certainly being undermined was an ancient tenet of Anglo-Saxon law, one which is embedded in the Constitution’s 5th, 6th and 14th Amendments, the presumption of innocence or, as the Supreme Court has asserted, the assumption of innocence.

The burden of proof is on the prosecution to convince the court that the accused is guilty beyond reasonable doubt. This right to be presumed innocent is so important to democratic culture that many societies, not just the United States, have included it in legal codes and constitutional documents. The Universal Declaration of Human Rights, in Article 11, recognizes the presumption of innocence, as does the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms. In many countries journalistic codes of ethics clearly state that journalists should clearly refrain from referring to suspects as if their guilt was clear and certain.

A very basic question then, one to which we will never know the answer, is whether or not the Ramseys, one or both, could have gotten a fair trial, given the clear and overwhelming evidence that the whole narrative around them was one of their being guilty. For the record, Bryan Morgan, John’s attorney, thinks that given the makeup of the population in Boulder (which has been declared by Forbes Magazine to be the smartest city in America because it has, per capita, more people above age 25 or over with at least a Bachelor’s degree – 52.9% – and this resting on the highly questionable premise that possessing a degree is a simile for being smart) and given voir dire, where potential jurors are questioned, they could have gotten a fair trial. I have to say, Bryan has more sunshine in his soul than I have.

In this context, also, there was an intriguing presentation in the winter of 1999 by the pollster Dave Sackett in a speech on “Key Trends in National and Colorado Public Opinion.” He suggested that: 1. truth is what people believe; 2. villains must be identified; 3. rhetoric is more important than fact; 4. the intensity of the focus is on detailing the problem, not the solution.

One of the arguments used by media lawyers to demand that information be released from the investigation, such as the ransom note and the autopsy report, was that there was a public “right to know.” It was, lawyers such as Denver based Tom Kelley who would claim, in the public interest.

The obvious question that emerges from that is, why? And what if one could reasonably argue that maintaining the integrity of the investigation served another equally compelling public interest, apprehending a vicious killer and therefore protecting public safety?

What seems perfectly clear is that the issue isn’t one of the public’s right to know but, all too often, the public’s right to ogle, at the expense of those who may or may not have been charged with a crime, or who simply may have a desire for their privacy to be protected. The premise seems to be that if the public’s interest in a story is understandable then it is by definition legitimate and therefore a valid media story. This begs, again, the question of: why? Obviously there are some stories that are both of interest to the public and which speak to obvious issues of the public good and interest. Corrupt politicians on the take would be such an example. Corrupt cops would be another. What public interest or good is served, however, when every detail of a serious issue such as child murder is made available in the public square in a manner almost guaranteed, and in the Ramsey case intended, to harm other rights that the individual properly has in a society in which the rule of law is deemed to prevail? In such moments, what drives the story and its consumption by a slack-jawed public is not their need for the knowledge to sustain democratic culture, but the desire for tittle~tattle and to sate a ravenous prurience.

Perhaps my own sense of the problems they would have had in obtaining a fair trial is based in considerable part on the feeling I increasingly had that this society was extremely concerned in establishing guilt, in punishing, in condemning, but yet it was not necessarily concerned with the possibility that the innocent could get caught up in the rush to justice. Indeed there is a not inconsiderable section of the population which is willing to accept that the death penalty should be maintained, even if the innocent are occasionally wrongfully executed – though one suspects that their views might be a tad different if they were the innocent being strapped to the gurney.

I also came to see that there was a small but influential group of what one might call professional accusers – I have in mind people such as Dominick Dunne, Mark Klass and John Walsh – three men made bitter and angry by the terrible experience of having a child murdered – and such programs as Cops, 911, True Stories of the Highway Patrol, Forensic Files, as well as the numerous other people and programs that give visible force and meaning to the society’s desire, need, to put bad people away. There is nothing in and of itself wrong with this even if, as I will suggest in a moment, it reflects impulses fed by deeper social and cultural pathologies.

Accusing, Damning, Condemning

As I first began to make some notes about what might become a book, in the summer of 2003, I noticed a new member of this band of those who would seek and render justice to those they deem – no, know – to be guilty and all beneath the glare of klieg lights. She was called Nancy Grace, and became a frequent pontificator on the Larry King Show. Eventually she would have her own shows on CNN and Court TV. She is, inevitably, a former prosecutor.

At that time she was particularly eager to tell us that a California woman, Lacy Peterson, was killed by her husband, Scott. There had been no trial, the evidence had not been laid out , but that didn’t matter one jot. The bastard’s guilty because Nancy says so.

A few months before, in 2002 she was equally sure that Richard Ricci, a handyman who had done work for a family in Utah, the Smarts, had kidnapped and probably murdered young Elizabeth Smart. The poor wretch, whose wife was adamant that he was asleep in her bed on the night of the disappearance, turned out to have an arrest warrant for him on an unrelated matter. He was arrested and imprisoned. While in prison he had a brain aneurysm and passed away. On March 12, 2003, Elizabeth Smart was found walking down a street in a Salt Lake City suburb in the company of a psychopathic drifter and self-proclaimed prophet, Brian David Mitchell, and his wife Brenda Barzee, with whom the whole while Elizabeth had been camping out in the hills near her home.

Nancy never said sorry, because she clearly had no more capacity to admit error than she has to offer forgiveness or the benefit of the doubt. Given these serious character flaws it should come as no surprise that she is in great demand for talk shows, has her own show on CNN and has a following of viewers, overwhelmingly women, who call in and before offering their question and comment say “I think you’re great Nancy,” at which point a faux smile crosses her face like a sunbeam on a granite cliff.

Honesty makes me confess to the fact that when I first saw her I had an immediate and visceral dislike. Her face is flinty, hard, drained of warmth. Her eyes are dead and cruel. She drips anger at God knows what, like a divorced soccer mom who lost custody, no kid or ball, but all of the attitude. She is the very embodiment, the Goddess Athene, of the resentment that seems to afflict so many lives, a disposition that demands: punish them and make ME feel safe; punish them and make ME feel better. I nevertheless had a sense that somehow she was a victim of something, that she was in pain, that some dynamite trail led to what Mailer once called a “stricken place.”

And there was. Her fiancé was murdered.

Dunne in particular interests me. He has never seen an accused who wasn’t guilty. There is the dandy dress, the ostentatious spectacles, the name dropping, the apparently perpetual lunch at the perpetually fancy hotel, the obsession with celebrity crime, about which he writes for Vanity Fair. In his 2001 book, Justice – Crimes, Trials and Punishments, he writes about the various celebrity trials he has covered, such as Claus von Bulow, OJ, the Menendez brothers and Michael Skakel. In a moment of either candor or idiocy, during his account of the Menendez trial, he writes: “In cases of high crime, I’ve never made any attempt to present a balanced picture. This was no exception.”

I had an interesting, and to me revealing, experience with Dunne on the Larry King Show. I can’t recall what it was that happened in the Ramsey case that led to the call to see if I could go on that night. Dunne had been booked for the whole hour, but was now to share the first couple of segments in a discussion about the murder. Early in the first segment King asked Dunne what he thought about the case. In that rather faltering style of his he said, “well you know Larry, I think that the brother might have done it.” Since there are two brothers, Burke, who was nine at the time of the killing, and John Andrew who was in his early twenties and was JonBenet’s half-brother from John Ramsey’s first marriage, King asked Dunne “which one?” “Burke,” Dunne replied, and then proceeded to ramble on about how this small boy had strangled and bludgeoned his sister, concocted a long and literate ransom note, got rid of much of the objects and materials used in the crime (including a stun gun), gone back to bed and fallen asleep.

If there was any truth to this then Burke would surely count as one of the more interesting psychopathic nine year-olds in history. The fact of the matter was that Dunne seemed to be the only person on the planet who did not know that the one person who had been cleared by the Boulder police as a suspect was Burke, on the not unreasonable grounds that given the nature of the crime no small boy could have done it.

As I listened to Dunne I became furious and let him know my contempt for this extraordinary combination of arrogance and ignorance. King, I think, was slightly embarrassed and did his best to defend Dunne. What stayed with me most, however, was the unspoken assumption that one had a perfect right to make such an accusation and the fact that he knew nothing of any value about the case was irrelevant. What was important was being in the spotlight of the Larry King show, and the adrenaline rush of accusing, damning, condemning whoever happened to have wandered into the cross-hairs, and if only he could do this enough then maybe some of the anger and anguish over his own life’s loss would be diminished. That innocence and the innocent would be trampled in the process was, well, just too damn bad.

Post-OJ America

In another sense when one looks at how the media dealt with the case over the years, from that Christmas of her death to the August of Karr’s arrest, one is reminded, not for the first time, that so much of what represents itself as “journalism” is actually a broth of fantasy, the trivial, the sleazy, the sexual. It isn’t that this is so new. Since the beginning of modern media, including the early newspapers that spoke to this new Republic, crime, scandal and sex have been staples. Today, however, there is so much, at the expense of much else, and it thrives not at the margins but in the heartland of the culture. It is this that is so troubling, and of which the Ramsey case has been so potent a symbol.

Lewis Carrol might have recognized the world in which the Ramseys found themselves: “I’ll be Judge, I’ll be Jury, said cunning old fury, I’ll try the whole case and I’ll condemn you to death.” In other words, the story constructed a surreal view of reality, but one that many people were only too willing to accept as if it were real. The Ramseys and those trying to defend them had to deal with a kind of “consensual hallucination,” to use Gibson’s phrase, constituted by what the famed sociologist C. Wright Mills called the cultural apparatus that “not only guides experience (but) often as well expropriates the very chance to have experience that can rightly be called ‘our own’…” galvanizing the extraordinary force of the irrational.

The context within which the case would be reported would be the America of post~O.J Simpson. It was a new media world in which the void left by his acquittal would be quickly filled by the Ramsey case. The Clinton sex scandal had further fueled a 24/7 voracious media monster. JonBenet’s murder happened just as this new media environment was being birthed. Adding to this was the deepening legitimization of the tabloid press in American journalism as they had shifted their attention away from the bizarre ~ Elvis seen paddling down the Colorado river ~ to real-life scandal, sleaze and human frailty, in which it seemed the nation was now drowning and for which the public had an impossible to slake thirst.

The Internet had also happened, with God knows how many Web sites dealing with the case and a culture of obsessive online interest in her death sprouting up with extraordinary speed. And driving it all was the fact that the images of JonBenet in the pageant videos, the sense of “that’s awful,” “tacky,” “exploitative,” the beauty, the youth, the violence, the sex, the wealth, the lifestyle and the fact that it happened on Christmas night made many giddy. One book editor, pointing out these characteristics of the case, told Sherry Keene Osborne, “I can’t tell you how excited we are.”

There was also a surfacing of a moral mood in the country that fed off a public hardened to cries of innocence, especially from parents. They felt duped by Susan Smith, who had for a time convinced everyone that her two sons had been abducted by a black man, only to eventually confess that she had taken them to a lake, fastened them in their seat belts in the back seat of her car, pushed it into the dark, cold waters and watched them slowly drown and all because she wanted to keep a boyfriend who didn’t want kids.

Millions of Americans also believed that Simpson had bought his “innocence” with his wealth and that in fact he was a killer. And the mood seemed also to feed off a delight in seeing the “better off’ brought down, as class resentment reared its head, as anger, fear and loathing became the defining emotional motifs of countless lives. It was a set of circumstances, a perfect storm, that would lead people to look at John and Patsy Ramsey and “see” killers.

The story that would be told over the coming months began, however, almost as a whisper. But even within that there was beginning to lurk the essential suggestion: here lie dark secrets, perversity of an almost unimaginable kind. Major stories work by taking on a life of their own, but, as with any life form, the essential elements are there from the moment of conception. What is remarkable is just how much and how quickly “information,” was being leaked from “sources close to the investigation.” It was, to be blunt, from the standpoint of contemporary media values, a great story.

After all, it’s just comedy…

In thinking about the nature of the media coverage I am reminded of the prescient comments of the English writer Richard Hoggart (who was also my boss for eight years) in his famously brilliant book, The Uses of Literacy, published in 1959, that moment when television had all but finished its conquest of public culture. He wrote of this

“newer mass art…This regular, increasing, and almost entirely unvaried diet of sensation without commitments is surely likely to help render its consumers less capable of responding openly and responsibly to life, is likely to induce an underlying sense of purposelessness in existence outside the limited range of a few immediate appetites. Souls which have had little opportunity to open will be kept hard-gripped, turned in upon themselves, looking out ‘with odd dark eyes like windows’ upon a world which is largely a phantasmagoria of passing shows and vicarious stimulations.”

Later in the book he writes:

“Most mass entertainments are in the end what D.H. Lawrence described as ‘anti-life.’ They are full of a corrupt brightness, of improper appeals and moral evasions. To recall instances: they tend towards a view of the world in which progress is conceived as seeking of material possessions, equality as a moral leveling, and freedom as the ground for endless irresponsible pleasure. These productions belong to a vicarious spectators’ world; they offer nothing which can really grip the brain or heart. They assist a gradual drying-up of the more positive, the fuller, the more cooperative kinds of enjoyment, in which one gains much by giving much .They have intolerable pretensions; and pander to the wish to have things both ways, to do as we want and accept no consequences.”

The experience also yelled, once more, that the case, and the public’s sense of it was much ado about sex, and particularly sex with children. This often invokes a dark brew of condemnation and fascination. Andrew O’Hagan has written:

“We could go a stage further, and suggest that our tabloid media have a paedophile element to their subconscious, a child-abusing energy at the heart of their own anger. The British tabloid newspapers demonstrate this every day, with their talk of ‘our tots’ and their enthusiastic ‘revelations’ about suspected child abusers and child murderers. You can’t read the British papers without feeling polluted, not only by the stories but by the degree to which the writers and editors of those stories appear to want them to be true, even before the evidence has proved it. Beyond this, a carnival of sensationalism vies with a deadly prurience, matched by a creepy populist appeal to the ‘common decency’ of the mob. You feel that the hacks are getting off on the horrors they ascribe, getting high on the pseudo-democratic vengeance their stories might excite.” [He quotes Margo Jefferson, who wrote an essay about Michael Jackson:] “‘Here’s an ugly fact,’ Jefferson writes. ‘The sexual abuse of children largely goes underreported. And even when it’s reported, it often goes unpunished. But here’s a sorry fact. We’re mesmerized by such crimes: they have become a form of mass culture entertainment, and a cover story for all kinds of fears.’”

O’Hagan is correct that conclusions about guilt made ahead of the available evidence are now a commonplace in popular culture and in fact have become the stuff of comedy. In the Los Angeles Times, Jay Leno’s former scriptwriter, Brad Dickson, points to the comedian’s habit of accusing people of being guilty. He writes, “…my job consisted largely of waiting for public figures to be accused of something vile, preferably illegal. Murder was No. 1 on our hit parade. Once a public figure was accused, we writers pounced like mountain lions on a lame goat. The jokes did not necessarily have to be good…but almost always assumed guilt… Much like a hangman, a ‘Tonight Show’ writer must recognize that as a well paid jury-pool-tainter, your charge is to not question guilt.”

He writes of how uncomfortable he was, for example, with the accusations Leno consistently made against Richard Jewell, who was for a while a suspect in the Atlanta Olympic bombing – Leno called him ‘Doofus Dick’ Jewell. Jewell was later exonerated by the FBI and indeed declared a hero for his actions that night. Dickson also writes: “The most potentially injurious jokes I wrote were about the parents of murdered JonBenet Ramsey. If not guilty they still had to endure a national late-night drubbing insinuating that they killed their own child. Although Leno has a reputation for presuming guilt the fastest and being the most relentless with mean jokes, almost all late-night hosts assume the accused are guilty. But does it matter? After all, it’s just comedy.”

Clearly it does matter, since it is now clear that more and more people, particularly the young, look to such shows for “information.” Why else would would be governors or presidential candidates declare their intention to run on the “Tonight Show.”

The Joy of Killing

One other possible, even likely, explanation for the popularity of the story of her death and others like it, the energy which feeds the news value, is that they ‘speak’ to a vital aspect of the human condition, an innate, morbid curiosity in death and mayhem, a compulsion of sorts that incites excitement and fear in exploring macabre topics such as death and horrible violence.

Mark Twain wrote in “Following the Equator,’ which was published in 1897: “The joy of killing! The joy of seeing killing done – these are the traits of the human race at large.” It is a disposition that has been described as “necrophiliac voyeurism.” There is nothing new here. In a review of Perry Curtis’ Jack the Ripper and the London Press, published in 2002, Richard Davenport-Hines writes: “When Tennyson and Jowett sat up late together, it was to talk of murders. The Victorians took a ghoulish pleasure in every phase of their more ghastly homicides; from the moment a corpse was found the hunt for morbid thrills was intense. After seven members of the Marshall family were hacked to death at Denham in 1870, ‘pleasure vans’ brought hordes of day-trippers from London to see the gore, and to purloin souvenirs. The Victorians were not dainty in their interest, and journalists were seldom squeamish in their reporting… executions generally fed a public appetite. Twenty thousand people went to watch William Palmer hang outside Stafford Gaol. Coventry Patmore’s rousing poem ‘A London Fête,’ describing ‘the wicked treat’ of a public hanging at Newgate, conveys the public’s ‘horrid thirst’ for gore.” One of the conclusions drawn by Curtis is that “Jack the Ripper” (whose name was almost certainly made up by a journalist at the Central News Agency) may not have been very good for the health of prostitutes but he was massively good for the health of newspaper circulation.

The obvious question I’m trying to engage is why do stories such as the death of JonBenet take hold of the collective imagination, and why stories that what one might properly define as more substantive, are so often marginalized? The answer is both simple and complex. Simple because there is an obvious public appetite, complex because of the mystery of why there are such appetites in the first place, ones that originate on the dark side of the human condition. In The Empire Strikes Back, young Luke Skywalker asks his Jedi master, Yoda, whether the dark side of the force is stronger than the good. Yoda replies with his Jedi wisdom and irony, “no, easier, quicker, more seductive.” Indeed.

Next: A Crisis of Prevailing Values

INDEX