Small Sacrifices (57 page)

Diane came back once, Lew continues, to give him his gold chain. "After she left on the twenty-eighth, I assumed it was over. She gave back the chain; I didn't want to come to Oregon, and I was back with my wife."

396 ANN RULE

Lew recalls the morning he learned of the shooting. "Diane sounded the same. She asked me, 'How are things? How is

Chandler?' and she said, 'See, I've been leaving you alone. No letters. No calls.' And I said, 'Why did you call?' and that's when she told me about the shooting."

"Did she sound upset?" Hugi asks.

"Not at all."

There is a whhsshing sound in the courtroom. Not a sigh—

more a massive intake of breath.

Hugi questions Lew about the rose tattoo on his shoulder, and Lew nods. Diane got her tattoo first and had his name written beneath it. For months, she had begged him to get one too. After a few drinks one night, he'd agreed to go with her to get the rose tattoo. But he had refused to have her name written under it as she wanted.

"Is there a name under your tattoo now?"

"Yes."

Diane freezes, listening.

"What is it?"

Lew stares down at Diane and says deliberately, "Sweet Nora."

Her chin snaps up—takes the blow. Instantly, she recovers, nodding with bitter weariness, as if to say, "I knew it all the time—I knew he'd buckle under to her."

Lew lifts the lid from the box of dried roses and nods. This is the box Diane brought to show him when she flew down to return his chain. He identifies the uncirculated 1949 silver half-dollar found in the glovebox of her car. "I gave it to her—that's the year I was born."

And then a virtual torrent of letters from Diane to Lew. Some of them mailed; some handed to him. Many were letters she'd written before she left and hidden in his drawers, in his bathroom, all over his apartment—for him to find and read after she was gone, a web of words left behind.

The longer Lew talks—hours now on the witness stand—the

deeper his voice grows with strain and fatigue, total Texas drawl.

'

Jim Jagger suggests to Lew that Diane was not nearly as obsessed f, with him as the prosecution would have the jury believe. Diane whispers and prompts during this period of cross-examination.

"You spent only an hour or two with her?" Jagger asks referring to their usual daily meetings.

"No sir."

"How late?"

"In my apartment, she would spend the night."

"When you were living with your wife, how late did you get home?"

"At that time, it [the assignations] would be after work. When I was with my wife, Diane and I were together eight hours a day at work and two more after--on the average."

Jagger stresses that this is a married man, who lied to his good and faithful wife all the while he seduced Jagger's vulnerable client.

The defense attorney elicits answers that show Lew actually likes children, inferring that the State's purported motive--that Diane shot her children so that Lew would come back to her--is patently ridiculous. Lew counters that he never wanted to have his own children. Diane had always said she didn't need him to be the father of her family. Yes, once he'd said: "Maybe I could give it a try--"

"You see her as being just incredibly in love with you?" Jagger asks, sarcasm heavy in his voice.

"Yes sir."

"She told you she loved you at least twenty times a day?"

"Yes sir."

Just before Diane left for Oregon, Lew testifies he told her that Nora simply wouldn't give him a divorce--not until "she was good and ready."

"What was Diane's reason for leaving Arizona and going to Oregon?"

"So that I could make some decision about leaving my wife and going to Oregon."

Jagger hammers at Lew. Wasn't Diane's moving away without any fuss at all the ultimate fair play--strange behavior for a woman who told Lew she loved him twenty times a day, for a B^oman Lew characterized as so incredibly in love with him? " "Yes sir."

"Were you aware of any other intimate relationships Diane Downs had while she was involved with you?"

"No sir."

(And, indeed. Lew was not aware of her later affairs. He did not know how quickly Diane had bedded down with Cord

Samuelson.)

Lew Lewiston is on the witness stand most of Wednesday.

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The tangled debris that he and Diane had made of their affair, his marriage, her children's lives, was laid out for the jury--and the gallery--in meticulously painful detail. Lewiston, a man who hates dissension, had found that once he began with Diane, there was nothing but dissension in his life.

He admits that he worried after the shooting that Diane or the police might implicate him as a suspect, adding that later his biggest fear was that Diane might come gunning for him or, worse, for Nora. "I was afraid that if Diane could shoot these children, the only other obstacle in her way would be my wife-that's why I made the tapes." Sitting there in his gray-blue suit, his pale blue shirt, navy tie, and beige boots, this bearded witness resembles more a wealthy rancher than a mailman, the ex-lover of an accused murderess. Lewiston has made no effort to paint himself any more honorable

than he is. He will not forgive himself. He will never believe that he is not in some way responsible for what has happened. Perhaps allowing himself to be so mercilessly exposed in this courtroom is an unconscious penance. There is a gritty honesty in the man's description of a time in his life that was less than honest. It is finally over, and Lewiston steps gratefully down from the stand. As he heads for the doors, he is--for the time it takes to draw a quick breath--within two feet of Diane.

Surely, she must turn and watch him walk away.

She does not turn around at all. And still, when the doors shut behind him, she flinches almost imperceptibly. So many, many, times Diane feared that Lew had left her. This time, he was gone. Really gone.

"When I finished testifying," Lew remembers, "and I was walking down the street, these two women drove by. Now, I was

thinking I was invisible. I didn't know anyone in Eugene--except the detectives and the DA, and . . . Diane. We just wanted to get on a plane and go home. I didn't realize I was public property. People recognized me.

"These women yelled out the window, 'Way to go. Lew! Way to go!' It was so strange--just cheering for me, like that. Like it didn't matter about the kids ... It made us want to get out of t, there and go home even more."

The court clerk begins to play the tapes on Thursday morning. There are twenty-five tapes, some of them over two hours long. The proliferation of tapes is in direct proportion to the loquaciousness of the defendant. It is a kind of black farce. The detectives taped their interviews with Diane. She recorded her own tapes to double-check their tapes. Lew taped her phone calls to give to the police. Diane taped Lew because she didn't really trust him. And, in between, she carried on a running taped diary.

As the jurors are each handed a hugely thick black binder full of tape transcripts--so that they may follow the printed word as they listen to the spoken voices--it looks as though the trial will last the whole summer through.

Reporters pull out fresh yellow legal pads, scribbling frantically; the gallery settles back to listen.

Diane has heard all of the tapes. She was a participant in them to begin with, and through the defense's rights of discovery, she has listened to copies of the tapes. Even so, how humiliating to have to sit still and listen to your own voice, unguarded, unaware-sometimes manipulative and wheedling, sometimes sobbing, sometimes angry, sometimes throaty with unspent passion--played

back in a courtroom.

| Diane doesn't like her voice. It is a pretty, feminine voice, although she talks so fast that she often sounds like a 33'/3 LP

record played at 78 speed. It is impossible to picture her as the shy child she describes.

On the Lew-tapes, he is unresponsive to Diane's constant calls, to her breathy declarations of love. Can't she hear that?

Why did she bat herself against such an inhospitable source of warmth--like a moth with one wing paralyzed by the glow? Did she truly not recognize the goodbye in his voice?

400 ANN RULE

* * *

Days later, we are almost finished. It is the last of the last--the hardball interview--which requires hours to hear. No one wiggles. No one coughs.

"You know this person?" Welch's voice asks finally.

"Yes I do ... and I'm leaving because I do. Goodbye!" The jury looks puzzled. Why would Diane keep that information to herself?

The State has called thirty-three witnesses; four hundred twenty-eight items of evidence have been logged. On the last day of May, 1984, Fred Hugi steps aside. The prosecution rests.

"Diane Downs!"

He's going to let her on the stand. The moment she gets on the witness stand, the door is opened to questions from Fred Hugi. Diane doesn't care. She has to explain.

She makes her way to the witness stand, a bit more ponderous than on the first day of the trial, her slender ankles seem too delicate to support her gravid belly. Diane wears a navy blue print tent dress, with a ruffled white bodice. She looks very young and very sweet.

She gives her age, twenty-eight, her birth date, August 7, 1955.

"How do you feel?" Jagger begins.

"Scared ..." she answers in a high light voice.

"Anything else?"

"Glad to finally be here--It's been a long wait. Scared--and anxious to finally have a chance to say what really happened."

"What does 'control' mean to you--the word 'control'?" Jagger asks suddenly.

"Control is just you don't show emotion. You don't show you're hurting or people may hurt you more."

"You really believe that?"

"Yes."

"Are you a trusting person?"

"No ... it depends on the person, I think."

"Do you like that part of you?"

"No, you don't find many friends . . . You go out of your ( way to trust certain people and you get hurt worse . . . You don't like people telling you what to do--anyway I don't." Diane's favorite poem is the one about how easy she is to read--the one ending, "Speak of me as you find." But all

through the prosecution's case, she has smiled and laughed at inappropriate moments. If the jury goes with her poem's sentiment, Diane doesn't have a prayer. Jagger attempts now to draw out a frightened little girl from behind the insolent mask. Is she aware, he asks, that--even as he questions her--she is smiling?

"No. It's not supposed to be there." But now Diane laughs aloud.

"Why?" Jagger asks. Why is she laughing?

She blames her father. "You had to sit or stand and listen. Don't smile. Don't cry. You end up mirroring what's on his face. You learn not to have any face at all."

"You realize this is real serious," Jagger reminds her.

"Yes. Yes." She is impatient.

"But you say that with a laugh."

"They're two emotions that are closely related. I've really never been allowed to cry--so I laugh. I know it's serious." And, again, she laughs.

Perhaps she cannot help it. Perhaps she really doesn't know about the face the world sees.

Diane tells the jury about her early life--her bullying father, her mother who dared not defy him. She has always considered her father an intruder into her life. Her parents, potential witnesses, are, of course, not in the courtroom as she discusses them. They are barred until after they testify.

No, she never confided to her mother about the incest, the fumblings and fondlings in the night when she was twelve.

"I didn't tell anyone until I was sixteen."

Her enmity toward Wes Frederickson laces everything Diane says. "Because of my dad, I can't stand to be touched by dominating men."

Jagger asks her to discuss control.

"I didn't like it, and I've always been controlled by someIbody else until I got my divorce. I vowed I'd never be controlled again!"

"Do you like to control others?"

"No. It can't be done. Or I'd be dehumanizing them. Just to gain control over yourself is enough. People say I like to control and manipulate--but I don't ... I thought my dad was a terror-but he was Santa Claus compared to Steve."

"At the time they [the incest incidents] were occurring, how would you cope?"

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"Blank out. It just didn't exist. I didn't exist. It's like a nightmare. Not real."

She explains she never cried or fought back. Her father was the authority figure. She could not resist him. And she could not tell.

"And so Steve dominated you later--Did you remain quiet?"

"No. We'd fight. I'd end up getting hurt worse. I would almost fight until he choked me and if I blanked out, and lay there, he said I was crazy."

"In response to your father, did you feel you had the opportunity to run away?"

"Yes and no. I packed my bags five times ..."

"Immediately after the shooting," Jagger continued, "you indicated on the tape that . . . was one of the most rational times of your life. Is that true?"

"No. It's easier to look back and see things as they really were."

"Why do that?" [Why tell the detectives she was rational?]

"I'm a Twinkie inside. I'm soft. I try not to let others see. I don't like people to think I'm soft or weak."

Jagger asks her about the incident in September of 1982 when she scratched at her face and shot through the floor of her trailer.

"I turned my anger inside--because you can't strike out at other people--so you hurt yourself."

"You never struck out at your father?"

Diane seems appalled at the thought. "No-o-oo."

"When people batter you with questions, what do you do?"

"You go inside yourself. That's the same as blanking out. You're screaming--shut up inside. At some point, you can't contain it, and it comes out."

"Did your father show softness, tenderness, or caring?"

"No."

"Mother?"

"When I was little."