Small Sacrifices (62 page)

The witness jerks his thumb at Judge Foote, drawing guf-434 ANN RULE

faws, as he suggests that the stranger looks something like "this guy here." Courtroom protocol is foreign to McCoin. He apparently doesn't know that Foote is the judge. Since Foote stands way over six feet and is no way "fat and chunky," it seems a flawed comparison.

Neither has seen "no yellow car."

Their descriptions of the man don't quite mesh, but both say he wore an army fatigue jacket. Diane has described a man in a Levi jacket. The man they saw on the bridge was walking toward Springfield. It is conceivable that he might have veered off to the right when he came to the Mohawk Road.

This is the sort of suspect that Wes had looked for so

assiduously--a wild drug-mad tramp seen out in the country only a half hour before his family was shot. No one has seen the man since. If he is the same man Basil Wilson saw earlier, he had gained weight and lost his bicycle ...

Why on earth would Diane Downs--with her three little

children in the car--have stopped for such a wild-looking stranger?

Even as a Good Samaritan?

As McCoin leaves the stand, he swaggers out of the courtroom and hits both doors as if he is leaving an old-time western saloon. Only one door opens, and he spins out of control, around the post holding the cordon that keeps the crowd back. There is a crash in the hall. Someone giggles, and Judge Foote raps for order.

"Call Willadene Frederickson!"

Diffidently, Willadene approaches to be sworn. She looks very nice, like a matron dressed up in her navy blue suit with a red and white striped tie for a spring Sunday at church. Diane turns in her chair and smiles--a little wistful smile. She looks for the moment like a child whose mommy had shown up in the nick of time to save her. She has scorned Willadene as wishy-washy so often, but her mother is here.

Her father is not.

Willadene smiles back at Diane, placing her hand on the

Bible. Willadene recalls to Jim Jagger that Diane arrived in Springfield on Easter Sunday, 1983. "We left Oregon for Arizona ten days before. We had a pick-up, and Diane had two cars. Katherine drove the white Ford Fiesta back."

Willadene had seen a microwave and a small television in the trunk of Diane's Nissan. She saw a rifle case on a little ledge at

the back of the trunk, and a "cloth item. I moved it. It felt like a gun--"

Willadene saw only a portion of the gun; she sighs as she attempts to draw it on the blackboard. "I don't know a thing about guns but I saw a cylinder and it wasn't flat." Willadene wipes tears from her eyes as she recalls the night of May 19, 1983. She describes her daughter as "hysterical-crying when I got there. Her eyes were red, her face was red, and tears were running down her face."

Now, Willadene sobs as she remembers her lost grandchildren and struggles to regain her composure.

Jim Jagger questions her about her family--how they were during the growing-up years. "Who was the enforcer of rules when you were raising kids?"

"I'd say pretty much both--he was head of the household." What had they told their children about crying?

"We taught them not to be crybabies--to knock it off. We taught them to be tough."

"Does your husband cry?"

"No--my husband doesn't cry."

"Does Diane cry?"

"She tries to be tough like her father ..."

Willadene feels that Diane held back her tears much of the time in the hospital that night to protect her parents.

"When was the last time you saw Christie?"

"I haven't seen Christie since October, 1983." Direct examination was over. Willadene steels herself, drawing in and bracing for Fred Hugi's questions.

Hugi is not confrontive; there is sympathy in the courtroom for this woman.

Willadene is not sure just when the call came from the

hospital--perhaps at 10:20 or 10:25. She and Wes had to get dressed, and they beat the police to the hospital by five minutes.

| Yes, the towel around Diane's arm was one of hers. No, there had never been any mistreatment of Diane as she grew up. Willadene told Hugi that she felt the hospital personnel had lied to them about the children's condition.

"Was your husband a good parent to Diane?"

"Yes. My husband was strict, but he treated all the children the same."

"Were you a good parent?"

"Yes."

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"Did you 'seal yourself off from her'--so that she couldn't talk with you?"

Hugi's question, quoting some of Diane's earlier testimony, catches Willadene off guard. She glances quickly at the prosecu^ tor in surprise.

". . . No."

"Did you take your husband's side? No matter what?"

"No matter what?" she repeats. "I took my husband's side most of the time. I was raised to believe the husband was the head of the household--but we listened to both sides. Parent and child."

"Was there physical discipline?"

"He spanked the children occasionally. He was not out of line."

"No more questions."

Willadene steps gratefully down from the witness stand. The logical next witness is Wes Frederickson.

He has not been called to testify. At the Springfield Post Office, the window between his office and the lobby--always open before--has been closed since the publicity started. The defense now presents its own expert on blood patterns: Bart Reid, a criminalist who once worked for the Oregon State Crime Lab, now in private practice. Reid had observed as Jagger and Mary Ann Vaughan--Reid's associate--performed tests with fresh blood.

Using Type 0 blood--drawn from a most accommodating

Vaughan--Jagger and Vaughan stomped and splashed and sprayed it on a rocker panel from a new Nissan.

Reid testifies that there were only twenty-five or thirty spatters on the panel of Diane's car, and that high velocity could not be determined from so few spots "without a history." Reid has dipped a postal sweater in blood and experimented to see if the sweater's "whipping" cuff would leave the spatters that Pex termed back-spatter from a gunshot wound. He shows the jury "targets"

--sheets of paper that he placed varying distances above the ground to catch blood as it dripped from the sweater.

Reid demonstrates four different blood-spatter experiments. ^ J| As the drawn blood coagulated, the sweater was redipped, and

H^dropped again and again above the rocker panel. The widths of blood spatter varied from four to twelve inches.

Bart Reid's testimony seems too scientific for the jury and

much of the gallery and press row. And it backfires. What results from his lengthy time on the stand is a reminder that blood was shed, sprayed, spattered, and hemorrhaged in great profusion that night--not a wise picture to reinforce. On cross-examination by Fred Hugi, Reid begins to sound like a witness for the prosecution. Bart Reid admits he cannot disagree with Pex's findings. Jim Pex had taken the rocker panel and all his blood-work back to Elmira, New York, to confer with Dr. Herbert McDonnell. McDonnell is the "grand-daddy expert" on blood patterns. McDonnell concurred completely with Pex's conclusions.

As Reid vacillates, Jim Jagger grins--a pained, rueful grin-and then even he begins to look somber. In the end, the defense bases its case largely on dreams. Dreams and human memory. Dr. Harold L. Hawkins of the University of Oregon, researcher in human perception and memory, consulting editor of the Memory and Cognition Journal, takes the stand. He explains that human memory has limitations; we perceive the world around us and interpret it according to our individual frames of reference. Human memory is not like a tape recorder. It diminishes with time, and we hasten to fill the gaps between the bits and fragments we do remember with our own details. Hawkins stresses that this reconstruction of memory is a basic human tendency--that we "fabricate" or "create" how it must have been, often unconsciously.

"Unconscious transference" becomes the buzz term for the defense. Unconscious tranference means that a subject places one event that has happened within the same time frame of another event--even though they may not have taken place concurrently. We remember some information; we forget other input. Humans are not infallible. A computer will spit back exactly what has gone into it; a human mind will muddle it up with individual i Perception and extraneous information.

I If the jury accepts the concept of unconscious transference, Diane's continually changing stories of the shooting may be explained. And Christie's testimony will be weakened.

Hugi objects; Foote sustains it. Hawkins is not allowed to testify that Dr. Carl Peterson might have inadvertently placed the thought that her mother had shot her in Christie's mind. While the

J^ry is out of the courtroom, Hawkins discusses Christie's question:

"If my mom shot me, Cheryl, and Danny, I would want to 438 ANN RULE

go back to her, because it wouldn't happen again. Maybe she just got really, really angry?"

And Peterson's answer, "But you don't think that she'd shoot at you anymore?"

In Dr. Hawkins's opinion, that response was tantamount to

"taking a statement that is not an established fact, but treating it as if it were a fact."

But then, Jim Jagger did exactly that in his cross-examination of Christie as he led up to his crucial question, "You don't really know what has made you change from wondering--to now thinking that's what happened. Right? Is that right?"

Diane's dreams have been brought into the testimony often, but no witness has been found to back up the defense's tentative theory that dreams too can be incorporated into unconscious transference. There is no research on such a phenomenon. Sane humans may--and often do--mix up memories of factual events in their minds, fabricate, and become confused. But they do not mix up dreams and reality, fantasy and fact. Not unless they do it deliberately.

Dr. Polly Jamison, Diane's therapist, is rumored to be the next-and last--witness for the defense. But Polly Jamison does not testify.

Susan Staffell, Christie's caseworker, testifies first in the State's rebuttal. Staffell made the decision to terminate Diane's visits with her children. "I have no axe to grind with Diane Downs; my only concern was--and is--the children." Yes, Christie had been brought to Fred Hugi's office to "practice" for court. "It's so difficult to testify in court--especially as emotional as this." j Christie's physical therapist from McKenzie-Willamette,

Nancy Whitacre, explains that she worked with Christie to alleviate the catastrophic aftereffects of her stroke. When she began, Christie could not walk or use her right side.

Hugi asks Christie's response to this.

"It differed. She was very frustrated at first. As she gained function, she began to cooperate. In the middle of June, she'd hide and refuse all therapy. I'd have to chase her around. Later,

"' she became very cooperative and she did more and more."

"What changed?"

J' "To my knowledge, she had learned she was going to a foster he e and not home with her mother." .

* * *

Hugi calls a final string of witnesses to confirm that there had been no plot to brainwash Christie or Danny: John Tracy, Christie's speech therapist; Dr. David Miller, Christie's pediatrician; Kirn Morrison, Danny's evening nurse; Evelyn Slaven, the children's foster mother.

"Did you ever suggest to Christie that her mother shot her?" Slaven bristles. "Absolutely not! In fact when Christie told Brenda that, she didn't believe her."

Evelyn, usually so calm, has good reason to be angry. For months--at Dr. Peterson's request--she forced herself to answer only "Oh," as Christie began to remember. She bent over backward to be neutral, even when she wanted so much to validate

Christie.

The week runs itself out.

If Diane should have her baby over this weekend, the delay would halt the momentum building; now the atmosphere was like electricity in the air before a storm.

Jack Hamann, an investigative reporter from KING TV in

Seattle, has wangled a jail interview Friday evening. Diane tells Hamann earnestly that she likes him--likes him enough to confide that she has miscalculated the due date of her baby. Actually, it isdue within twenty-four hours!

"Are you still concerned about the State taking this baby away?"

"That's not really a problem." She smiles. "I'll just wait till they acquit me and then I'll have it."

By force of will, she intends to fight off whatever hormonal triggers might try to send her womb into contractions.

She sounds very strong; Hamann believes she can do it.

"Have you studied the jurors' faces?" he asks. I "I don't like to look at them."

"Why?"

"They don't interest me."

"Have you seen one of them that looks sympathetic?" he prods.

"No ..."

True to her word, Diane is in court Monday morning, still preg-"ant, as Dr. George Suckow, the chief medical officer of the

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Marion-Polk-Linn County Unit of the Oregon State Hospital, refutes the unconscious transference theory.

"There is frequently no sense to it."

Conscious transference does, indeed, occur, Suckow says, but it is a most subjective concept. When there is no secondary gain from employing it, it is called "fiction." When there is secondary gain, it is called "lying." The parade of witnesses is finished.

It is over, save for final arguments.

And the verdict.

This trial has gone on so long that it seemed it would never wind down to a true finish. It is the eleventh of June. Six weeks we have been together in Courtroom Number Three.

At 11:25, Fred Hugi stands for his final arguments. The

weight he has lost is apparent. Twenty pounds certainly--or more. But there is a steely calm about him as he begins; his voice strong as he reads the charges. He speaks colloquially--"with ya," and

"to ya."

"There's no doubt who did it ... Mrs. Downs did it . . ." Diane smirks and shakes her head.