Small Sacrifices (30 page)

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If

casings were as valuable as a lottery stub. One in a million might pay off.

Fred Hugi waited to hear the lab results like an expectant father.

Exhibit #45--One plastic vial enclosing one damaged

copper-washed .22 caliber bullet wrapped in blue tissue paper. (The bullet found under Diane's trailer.) The total weight of this bullet is 36 grains. Microscopic examination reveals approximately one half of the lands and groove impressions are destroyed. Microscopic comparison of this bullet to bullets in Exhibits 1, 2, and 7 (the bullets retrieved from the

victims) reveals the class characteristics are similar. Due to the type of bullet (copper-washed) and subsequent damage, the writer is unable to effect a match. However, it is the writer's opinion that this bullet cannot be excluded from having been fired through the barrel of the same weapon as the bullets in Exhibits 1,2, and 7.

Close but no cigar. Pex was saying that the battered bullet might well have been fired from the gun that shot Cheryl, Christie, and Danny, but that he could not say absolutely that it had. None of the other possibles even came close.

"Some criminalists would say 'yes' to the .22 bullet from under the trailer. Others waffled on it. It wasn't safe to gamble. 22s are just plain hard to call," Alton explains, with passage of time dulling his disappointment.

On June 1, twelve days after the shooting, Fred Hugi remembered Diane saying to him, "I'm getting stronger and stronger and stronger."

She was, and she didn't even know it yet; they had just lost the best piece of evidence they had going.

"Let's put a chink in her armor," Paul Alton suggested at the J next early morning meeting, "She doesn't know the bullet was in

^ch bad shape. We tell her that it did match--she'll spill her I guts."

,. .They considered it, tossing it around. But that was what cops uld m the old days--no more. They'd find another way. The case ^s still young.

, Any day now, they could get lucky. They had no way of

mowing then that luck would be elusive--if not nonexistent.

By June 1, 1983, Kathy and her baby Israel had moved from Wes and Willadene's house, but Diane's youngest brother Paul had moved back home. He had been living with one of Wes's brothers who died suddenly, leaving Paul $25,000 so that he might go to college.

Diane was almost twenty-eight, but in her father's house she had to obey as if she were still a teen-ager. She couldn't drink; she couldn't date. She continued to tape her thoughts, backing up her cassettes with written comments in a ledger book. She was angry in both voice and script. She had cooperated with the detectives, she'd trusted Dick Tracy and Doug Welch--and now they didn't believe her. She suspected they were trying to lead her into some bizarre admission.

Diane balked now when the investigators asked for her help. She would not give her consent for minor surgery to remove bullet fragments from Christie's shoulder, nor would she allow the children's wounds to be photographed.

They did it anyway. Diane blew up at Dick Tracy. Wes

Frederickson, however, assured Tracy that Diane was anxious to take a lie detector test. Diane was served with a grand jury subpoena one afternoon while she visited Danny and learned that her polygraph exam had been scheduled for the same day. They were really piling it on her, she thought bitterly.

The grand jury system dates back to twelfth-century English law, and it is the only legal process in America still held in secret. Often under fire as antiquated and unfair--a tool designed to favor the prosecutor--the grand jury system allows selected members of the lay public to meet and decide if a suspect should be indicted. The judge's role is minimal--he is there only to maintain order. No defense attorneys or reporters are present at the pr°'

ceedings. (Witnesses may, however, request permission to leave the room to consult with attorneys.) Only the prosecuting attorney and the witnesses--all of whom are sworn to secrecy--are allowed in the room. There are twenty-three members in federal grand juries; in Oregon, there are seven.

The Lane County grand jury met first to discuss the Downs case in late May, 1983, and it would continue to meet--chaired by a Eugene homemaker, Claudia Langan--once or twice a month for a much longer time than anyone could ever have expected. Witnesses passed into the secret chamber, testified, and were dismissed. No one knew what they said there.

When Wes heard about Diane's subpoena to grand jury, he felt it was high time she got herself an attorney. A minister recommended Jim Jagger, a man active in church activities. James

Cloyd Jagger was thirty-eight and the father of two children close to the ages of Diane's children. A clever, competent attorney, he had practiced law years longer than Fred Hugi. He had been a deputy prosecutor in both Coos and Lane counties and in private practice since 1975.

Jim Jagger is either friendly and open by nature--totally approachable--or he chooses to appear that way. There is a puckish air about Jim Jagger, a mischievous quality as if he knows secrets no one else is privy to. His suits are off the rack, his brown hair is thick and constantly tousled. He smiles a great deal. He misses nothing. In the courtroom he is as enthusiastic as a television preacher. His acquittal record is good.

Diane did not appear immediately before the grand jury, nor would she for many months. For a victim to refuse to appear before the grand jury is almost unheard of. How can a prosecutor be expected to act on the victim's behalf if she will not testify to her loss in grand jury? DA Pat Horton asked Jim Jagger about Diane's refusal to appear and Jagger answered obliquely. "You know who shot the kids, and I know who shot the kids." Jagger also decreed there would be no lie detector test at the aunty's pleasure. Instead, he arranged a private polygraph ses-^on. Diane flunked it. No one knew, Jagger had immediately discerned a recklessness in his client, a seeming inability to shut her mouth--even when talking meant

danger for her. He urged her to consult with him before she gave 202 ANN RULE

statements to detectives or to the media. She promised she would but she hated to take advice, particularly from a man.

Jagger wrote to McKenzie-Willamette Hospital: "This letter is to serve as a demand on behalf of Ms. Downs that law enforcement agencies and Children's Services Division ... not have access to Ms. Downs, or her room, or the room(s) of her children and that such parties, including hospital personnel, immediately cease and refrain from any interrogation or questioning of Ms. Downs' minor children, and/or Ms. Downs, as to any events leading to their injuries."

The gloves were off. Elizabeth Diane Downs, assisted by her attorney, was telling the cops to leave her children alone. When the story hit the early edition of the Register-Guard on June 3, the public realized for the first time that Diane Downs-the mother herself--might be a suspect. Most were shocked; many were downright indignant--and vocal in their criticism of the authorities' insensitivity.

Diane visited Christie and Danny constantly, snuggling close to Christie, whispering. Deputy George Hurrey overheard snatches of conversation. Christie was beginning to speak--haltingly--but he could understand her. On June 10, he watched as Christie smiled cautiously at her mother and said, "Paula was here today but I didn't talk about nothing."

There was an ugly scene between Diane and George Hurrey; she'd been upset when Danny was moved, and more so when Christie was not allowed to phone him. Fred Hugi had ordered

the phone removed; he didn't want to risk the chance that someone might threaten Christie over the phone.

When Hurrey told Diane that Christie could not make calls, Diane whirled toward Christie. "These heartless bastards won't let you talk to Danny . . . You're just a prisoner of war. I promise you, Christie. I'll get them. I'll get every one of them!" Christie, mute again, stared back at her. Hurrey stepped between Diane and Christie; and Diane dared him to hit her. There was the ever-present danger that Danny's and Christie's memories might be contaminated. Trauma and shock had

done enough damage already. No one must be allowed to alter what they still remembered.

Diane's animosity toward Paula Krogdahl grew. The enmity was returned, although Paula kept her feelings hidden.

Christie Downs knew now that her sister was dead and that her brother was hurt--but she didn't talk about it. Sometimes

she cried, but she couldn't explain her feelings. Her mother came to see her every day, but the guards were always there too and they wouldn't let her shut the door and talk to her alone. One day her mother brought in the shiny unicorn--the one she'd brought home for them. When? It seemed like a long, long, time ago. Anyway, her mother put it on the bed with her and showed her where it said their names and "I love you. Mom" on it. Her mother told her that unicorns never died, and that the unicorn belonged to Cheryl now "so that means that Cheryl will never die."

It was awfully confusing for Christie. Cheryl wasn't a unicorn. Cheryl was dead. Didn't her mother remember that?

Mostly, Christie wanted to sleep. She didn't want to talk, and she didn't want to remember. She liked John Tracy, her speech therapist, but it felt safer somehow just to drift off. John kept waking her up.

In early June, Diane was readmitted to the McKenzieWillamette Hospital for surgery on her injured arm. Jagger had stipulated there be no investigators present in her room and/or the operating room.

She was soon comatose under an anesthetic dose of sodium pentathol. She said nothing. Indeed, if she had said something during the operation on her arm, it would have presented her surgeon with a delicate ethical problem, another facet of privileged communication.

A single bullet had shattered her left radius. Dr. Carter removed a large blood clot and minute pieces of the slug. The bone fragments were drawn into place and held firm with a metal plate. Carter grafted a thin slice of bone he'd shaved from Diane's left hip to her arm where the bone had been blown completely away. Diane remained in the hospital for four days, her injured arm encased in a heavy cast. She learned the day after surgery that Christie and Danny had been removed from her custody. At Hugi's request, Lane County Judge Greg Foote signed an emergency protective order placing both Christie and Danny under the temporary care of the Oregon State Children's Services Division. "ugl had had no other choice; Diane had said she was going to

fake her children out of the hospital and nobody was going to ^op her.

^"Dr. Miller and Dr. Wilhite informed me. When I woke up in 204 ANN RULE

the recovery room, they told me they wanted me to know about it before I saw it on TV. They said, 'We just want you to know you can see Christie whenever you like,' as if they had the right to give me permission to see my own child! Jim [Jagger] explained that the DA said I was hindering the investigation." One evening, Jim Jagger and his associate Lauri Holland

came to McKenzie-Willamette to see Christie. When sheriffs deputies and nurses balked, there was a disturbance--almost a scuffle--and in the furor, Holland spent ten minutes alone with Christie before she was ushered out.

Diane told her tape recorder: "I dreamed about the shooting. I had the impression that he knew me."

"... the impression that he knew me . . ."

Diane whispered to her tape recorder that she thought maybe the gunman had recognized her. She told no one else. Not even Jim Jagger.

As Diane underwent surgery in the McKenzie-Willamette Hospital, Kurt Wuest was at Sacred Heart Hospital talking to Danny Downs. Danny knew Kurt well, and he was used to seeing him around. Wuest had no kids of his own; Danny Downs got to him.

"He was so smart--so very, very extremely smart. He was a real heartbreaker for me. One time, he was sitting in his wheelchair and he looked at me, impatient and confused, and he said,

'How come I can't get up? I wanta get up.' And I didn't know what to tell him, so I didn't say anything."

They played games together, and one of the games made

Wuest and everyone in the playroom turn pale. "Danny pointed his finger at me, as if it was a gun. Then he goes, 'Psshhow!

You're a bad boy!' like he was firing at me."

Wuest talked to Danny in the third-floor playroom as Clanny's nurse, Janet Jones, sat beside the little boy. Wuest spoke in a casual, soft voice--deliberately interspersing unrelated topics with the questions that were vitally important.

"Do you remember going to see some horses a little while ago?"

"Yeah."

"Did you go in the car?"

"Yeah."

"Where did you sit?"

"Back seat."

And then the harder questions, painfully, tediously asked.

"Danny, do you know how you got hurt?"

(No answer.)

"Did you see Christie get hurt?"

"Yeah . . . next to her." <

"Was it in the car?"

"Yeah."

"Did she cry?"

"No."

"How did she get hurt?"

(No answer.) ylvli"

"Did your mom get hurt?" ^i

"Yeah." ;

"How?" w . ''.•:

"Cat did it." ;

"Were you in the back seat when you went out in the country?"

"Isn't any more country."

"Who was driving?" ' •"•»

"Aunt Kathy."

B "Did you see how Christie got hurt?"

"Somebody poked her."

"Who?"

"I don't know."

"Was it somebody you know?"

(No answer.)

"Where did Christie get hurt?" ' ^'i

(No answer.)

"In the leg?"

"No."

"In the stomach?"

"No."

"In the arm?"

"In the arm."

And then Danny became very still, his face a blank mask as he looked into the distance.

"Are you afraid to talk about this, Danny?"

"Yes."

Wuest immediately stopped questioning Danny. The usually