Small Sacrifices (55 page)

Jim Pex will attempt now to give the jury a crash course in forensic science. Pex and Chuck Vaughn have inserted a wooden dowel into a cutaway of a .22 Ruger semi-automatic pistol, and then held the gun close to the dolls' "wounds" to determine angle. A rigid white probe ran from the gun's barrel through the wounds to show the bullets' paths. Pex demonstrates on the rag dolls.

It is a standard procedure in autopsy to help forensic pathologists ascertain the height of the shooter, his position, and the position of the victim. It is horrifying for the layman to watch. This morning, the jurors and the gallery can see the children as they were when they were shot.

Jim Pex uses an overhead projector to demonstrate how close the shooter was to the victims. With a .22 caliber gun, the maximum distance barrel-debris (particles) will travel is two to three feet. All of the children had heavy stippling around their wounds. Pex used a number of tests to verify his findings: the Sodium Rhodizonate test (which turns purple in the presence of lead); the

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Greiss test (for Sodium nitrates); a soft tissue X ray; the appearance of the skin itself; the swollen fibers of clothing where the bullet penetrated.

The gun barrel had been between six and nine inches from the wound in Diane's forearm.

The gun had been nine inches or less from Danny's spine. The gun had been nine to twelve inches away from the two wounds in Christie's chest (wounds so close together that they could be covered with a half-dollar piece), but only one or two inches away from the hand she held up in a vain attempt to block the second bullet.

The gun had been six to nine inches away from Cheryl's right shoulder--the first shot--but it had been right next to the skin--a near-contact wound--at Cheryl's left shoulder.

Pex places the doll children in the car mock-up. Danny is on his stomach on the left side of the back seat. "He would have been paralyzed immediately upon being shot." With the gun-on-astick, Pex becomes the shooter. He shows how "he" would have had to lean into the car to shoot Danny.

At Judge Foote's invitation, the jurors stand to get a better look at the demonstration.

Diane looks away.

Pex shows that Christie would have had to be sitting up on the right-rear seat. The first shot would have knocked her into a half-reclining position. The second bullet had gone through the back of her hand into her chest.

Cheryl's first wound occurred, Pex deduces, as she lay on the floor of the front passenger seat. In an almost reflex action, Cheryl had apparently reached for the door handle and tumbled out on the road. Cheryl had suffered a fatal wound to her upper right shoulder, but she was still moving. Her killer had either reached across the front seat--or run around the outside of the car--and placed the .22 Ruger against her left side and fired once more.

Pex takes the probe and shoves it through the Cheryl-doll's left side. The courtroom is as still as death itself.

Because that wound was contact, or near-contact, there was

"back spatter"--high velocity blood that flew back from the wound to the rocker panel of the Pulsar, leaving a characteristic scarlet spray along the aluminum ridges.

Either bullet would have killed her. The second shot may 384 ANN RULE

well prove her killer a liar. Christie cannot remember seeing Cheryl shot a second time.

But Christie has retained one remarkably clear memory. She is positive that a tape was still playing, even as the shots were fired. "Hungry Like the Wolf wailed inside the car, keening lyrics of thwarted lust. When Christie heard it in Dr. Peterson's office, her expression had reflected a dawning memory of terror. Diane had always said it was Cheryl's favorite song. Or was it Diane's own theme song? Passion and longing and the mouth full of juices, the huntress on the prowl, the she-wolf warning her lover that she would never, ever, ever, give up until she stalks him to the wall, and leaps upon him by moonlight? Fred Hugi felt that "Hungry Like the Wolf had given Diane the courage to do whatever she had to do to get Lew back.

It would have been the last thing Cheryl heard.

Jim Pex found something interesting when he checked the

condition of the tape deck at the Lane County shops. The tape deck would not play unless the keys were in the ignition! Diane had stressed continually that she put the keyring around her finger as she got out of the car to talk to the stranger on the road. She has related a dozen times or more how she pretended to throw the keys after the man shot her children.

If the keys were in her mother's hand--outside the car--how could Christie have heard

"Hungry Like the Wolf?" Why did

Duran Duran continue to sing as the bullets fired monotonously?

Pex's findings suggest that Diane Downs lied about throwing the keys. It makes her whole story of fighting the gunman suspect. Can the jury pick up on the significance of this?

Jim Pex's next chore is to explain what the identical tool marks on the bullet casings mean. It helps to have gun owners in the jury.

The Crime Laboratory Information System lists 12,000 different weapons and all of their characteristics; 3,468 of them are pistols. The best fit for the death weapon used on Old Mohawk Road is a Ruger semi-automatic pistol.

Several witnesses have said that Diane was the last person in possession of the .22 caliber Ruger semi-automatic that Steve Downs stole from Billy Proctor. The casings on the road fit that gun. When an extractor pulls a cartridge from the chamber, unique scratch marks are left on the cartridge. When an ejector flips the casing to the right or left, it too leaves distinctive marks.

Pex moves to the huge display board where blow-ups of the parts of a pistol, magnified many times, are mounted.

"Nine cartridges were found at 1352 Q Street--in the Glenfield rifle," Pex explains. "Two of the cartridges found in that rifle had been mechanically manipulated through the weapon that was used to shoot the children."

Despite the huge blow-up showing the matches in tool marks on cartridges from the rifle in Diane's closet and on the casings of the death bullets, Chuck Vaughn was right when he warned Hugi that photographs would scarcely show a lay jury that those two cartridges had once been in the missing .22 Ruger. Cartridges were not as convincing as bullets.

Pex admits that the bullet Paul Alton and Doug Welch found under Diane'Downs's trailer in Chandler, Arizona, was too badly damaged to say it had identical characteristics to those fired on the night of May 19. In forensic science, a very strong possible doesn't count.

Pex had purchased a Styrofoam-lined zippered case for a

Ruger, placed a gun similiar to the missing weapon inside, and put it into water to see if it would float.

"It did--without even getting the zipper wet." If the shooter had thrown the gun--in its case--into the Old Mohawk River, it might well have floated until it reached the McKenzie or the Willamette, moving gently north on the current that links rivers and reservoirs in a seemingly endless chain to the mighty Columbia.

Possibly never to be found.

Diane supports her belly with her hands often now--as if it is very heavy. She has moved to Jim Jagger's chair so that she can watch Pex's tool mark demonstration. His explanations tear jagged edges along her own script of what happened that night.

Jim Jagger is on his feet, moving around the mock-up, the [display board, taking notes. Pex describes spraying Luminol in the death car and along the roadway. It showed blood inside the car, and on the rocker panel, but, oddly, none on the road itself. Pex deduces that immediately after Cheryl was shot for the second time as she lay on the ground, the shooter threw her back into the car--before any blood had seeped from the wound. The initial bleeding was internal; the pool of blood on the floor of the front seat had come from Cheryl's mouth.

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Cross-examination of Jim Pex is spirited. Jagger needs to shatter the theory that Cheryl was shot outside the car. He asks if the door angle might not have been different than assumed, if certain blood spatters might not have come from another source, at a different time.

"That's affirmative," Pex says calmly, "(f you have an alternative."

Jagger bears down on Pex. Jagger, the master of the scattergun, convoluted question, is at his best in this kind of courtroom warfare. Blood spatter, gun residue, ejector marks, extractor marks--all of it is confusing anyway to anybody outside a forensic lab. He obviously wants to cloud the issue, to ask Pex the same question so many different ways that the jurors will run out of endurance or interest to keep up.

Finally irritated, Pex responds to one of Jagger's long, long questions, "Well, we're not talking about a basketball here-we're talking about a liquid."

"Well, you recognize that some experts in the field would differ with you on that, Jagger counters.

"No, I don't recognize that--" Pex's voice rises a shade. Fred Hugi makes no move to object. Pex is quite capable of taking care of himself.

Jim Pex stares without expression at Jagger, who continues to question him about blood spatter, and says finally, "Perhaps you could draw this--you've got me confused."

Jagger wants to get to the top of the mock-up so that Pex can explain where the blood spatter was. Fred Hugi bends to lift the heavy top portion, turning to Jagger to ask tersely, "Want to help?"

Judge Foote steps down from the bench to help lift the top of the "car."

Pex explains that the blood spatter on the roof of the car had been "medium velocity"--traveling at five to twenty-five feet per second. This was consistent with blood from Christie's injured hand flinging back--the drops much larger than high-velocity blood spatter.

t It has been an endless blue Monday. Diane seems glum and dispirited. She has been kept busy turning her eyes away from displays. They are all over the courtroom. Dolls with probes through them, a car like hers, the terrible glossy pictures of Cheryl--dead.

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Diane wears a different outfit each day. On Tuesday, it is a gray and red diagonally striped maternity top. She always wears the red identification wrist band of a high-risk prisoner--but she makes it seem a part of her outfit.

For the most part Diane appears relaxed, her right arm draped always over the chair. It stays there sometimes for an hour or more, her limp white hand motionless. Her nails are long and unpolished, and her hair is lank, the dark roots showing more; her skin is flawed and muddy.

The testimony is still about blood. Who would have thought that blood could be seen so many ways? To maintain a modicum of serenity, it is important to forget where all of this blood under discussion came from and to concentrate only on the scientific aspects of Jim Pex's prolonged cross-examination.

Yes, there was a blood-spatter pattern on the exterior of the car. Yes, Pex believed that aerosol-like spray on the rocker panel had come from Cheryl. Bullets free high velocity blood, blood that travels at more than twenty-five feet per second. "It doesn't change much when the subject is moving slowly."

Laconically, Pex is saying that the victim can be almost dead, but his blood will still travel at high speed if he is shot. Pex patiently explains that he has tested all manner of objects for blood patterns: hand-whipped blood, a bloody sponge smashed with a hammer, with a sledge hammer. Pex tacked butcher paper up lab walls, over lab ceilings to catch blood as it was flung from a variety of sources. Humans do much damage to one

another with any number of weapons, and there are distinct differences in the way blood leaves their veins and arteries. Jim Jagger suggests that the blood on the outside of the car didn't come from Cheryl's being shot outside, but was only deposited there when Shelby Day lifted Cheryl out. The sleeve of

the postal sweater must have dipped in the pool of blood on the floor and left those drops on the panel.

No. That would be "cast-off blood" Pex explains. Castoff blood is not like back spatter. Cast-off blood comes from a whipping hand or a dripping sleeve. Pex cannot be shaken. "I made my opinion on the source of that blood the day we wheeled the car outside."

The postal sweater, its lower left sleeve saturated with blood is admitted: "Exhibit #53."

Jim Jagger picks the Cheryl-doll up from the front of the 388 ANN RULE

red car, wraps her in the gray sweater, and demonstrates how the sweater's arms would have trailed through the blood, and then dripped on the rocker panel. Jagger must go through a most complex series of dips and whirls to make his point. Pex shakes his head slightly.

Finished with the doll, Jagger drops her into a sitting position at the rear of the plywood car. The loose strand of yarn falls back over her face. The black felt eyes stare straight at Diane. Diane runs her long sharp fingernails over her pregnant belly again and again, as if she is stroking and comforting Charity Lynn. She does this often now--caressing her own abdomen, and then raking it with her fingernails. It is somehow embarrassing-disturbing--to watch her. Danny's blood was on the back seat, although very little of it.

"The bullet clipped his lung--he may have lost blood through his nose or mouth."

Wait--if Diane was the shooter, why hadn't there been more blood on the sleeve of her plaid shirt? Jagger is curious about this.

"I made a paper apron, I held the gun twenty-two inches from the paper--the blow-back spatters occurred. [Closer up] I held the gun in my right hand--and I only got a few droplets on

. my sleeve. Most of the blood went up."

Pex was, of course, not shooting at a human body--only at a blood-soaked sponge wrapped with plastic to simulate skin. More enthusiastic--and less sensitive--criminalists and pathologists have testified to the same experiments with cadavers and animals, a practice that instantly alienates a jury.

To refute further the theory that the blood on the outside of the car had come when the ER crew removed the children, Pex had tried another experiment: "I went to McKenzieWillamette Hospital, and I poured a cup of blood on the asphalt surface. We stomped in that blood, and we attained some blood spatters on paperbags. We got spatters only two and a half inches up. We did not produce any spatters more than two and a half inches from the ground--eleven inches away."