Small Sacrifices (63 page)

"It sure would be nice if it was a bushy-haired stranger, because it would be easier for all of us to live with--" Hugi lists again the changes in Diane's stories, the crime lab's physical evidence from the car, the apartment, the proximity, the blood spatters, the cartridge comparisons, the use of the

.22 Ruger.

Her motive was clear: "Stress, the defection of Lew, money problems, past history." J

Diane is the only suspect with the motive, the opportunity, the plan, and the .22 Ruger. And so much has been omitted in her testimony.

"She lied about owning the Ruger. That's left out. She would only say she 'possessed' it ... When she learns the police have learned of a .22, it becomes necessary to explain how she gave the gun to Steve in Arizona--to have that connection so she can say, 'The gunman knew me.' "

Yes, Diane's hands had seemed free of gunshot residue. But Jim Pex had fired a similar Ruger seven times, waited a half hour for a swab test, sent it to the lab in Medford, and his tests came

'Ms

back "inconclusive." "Dust that falls off--and certainly if you wash it off--" Hugi suggests.

Diane's re-enactments of the shooting have placed the shooter's feet outside the car. But the wounds were all near-contact. Diane has said the stranger was only five feet eight inches tall.

"He'd have to have had arms like Wilt Chamberlain," Hugi says.

For perhaps the first time in trial, Diane Downs looks very, very serious. One by one by one, Fred Hugi is shredding her alibis, her explanations.

"... so they say Tracy planted the bullet evidence. Why would Tracy plant it right at the outset? He doesn't know about the Ruger. He could have planted any other kind--that might be wrong."

Why indeed?

Suddenly, there is a ruckus at the back of the room. A large disheveled woman carrying a white plastic bag barges into the courtroom. Doug Welch and Ray Broderick leap up to assist her out.

"Why?" she bawls. "Maybe I know something?" She points at Broderick. "Ask him! He can tell you."

It is only the courthouse's resident "bag-lady"--so familiar to regulars that Hugi scarcely pauses in his summation.

"Christie related in quite some detail what for her must have been a nightmare like none of us have ever suffered. Her demeanor defied fabrication. You all watched it. Trust yourself. I submit that that child on the witness stand relived that experience . . . How could anyone program a nine-year-old to relate something that awful in that fashion--if it wasn't true?"

Hugi reminds the jury that Joe Inman followed the red Nissan after the shooting.

"He was at the scene where the casings were found one minute before he got to her car, and he didn't see anyone there

|and he didn't see any yellow car ... He observed her driving was not erratic or unusual--just slow."

Diane had not asked for help; she had crept along until Inman Passed her.

"Did she have shot-up kids in the car and the gun also? If she had gotten rid of the gun and the children were sufficiently comniunicative at that point where they were speaking--yelling-'Mom, you shot me!' or 'Why did you shoot me?' That wouldn't 442 ANN RULE

be very good to have Mr. Inman hear that either--if she stopped at that point ..."

Hugi's voice was scathing as he went through the timetable of the shooting. It had taken Diane eighteen minutes to go eighttenths of a mile.

"If she shoots the kids somewhere in a remote area, she can head into town and pull over on a secluded road. Then she stops after the kids are shot. She's got two things left to do: she's got to shoot herself. She's got to make it look like she was involved in this thing as a victim, and she's got to get rid of the gun . . . She puts her arm out, flinches the first time--she testified she doesn't like to hurt herself, doesn't like to feel pain--and she shoots . . . the second time and you've got the casings in the road ..." Diane has pulled over exactly where the river is closest to the road, the most opportune spot to throw the gun. She wraps her arm in the towel . . . But what if the kids aren't dead? She can't j shoot again. She doesn't have the weapon anymore--so she goes s-l-o-w ... At some point, the pace picks up.

"She arrives at the hospital. All the kids appear to be dead

. . . Her main concern is which of the two girls died. Christie can identify her; Cheryl can't ..."

Hugi explains why a twenty-five-minute trip took fifty min-|

utes. "She has to scout out the spot, screw up the courage, tell the kids to go to sleep--and drive around and hope they go to sleep . . ."

Fred Hugi reviews the terrible scene at the McKenzieWillamette ER, and the defendant's incongruously blithe remarks;

he reads Christie's verbatim testimony.

"Dr. Peterson said that the way her memory came back was not unusual. He listed several faraway looks of terror in her face when she related this information . . . How would it feel if you were a nine-year-old child, and one day you went out for a ride with your mother and your brother and sister and then it got to be dark and the car pulled over and your mother came back with a gun and in front of your eyes murdered your sister, shot your brother, and then shot you? You would know how Christie felt. She was trapped in that car. There was nowhere for her to go. She 1

y, could just back up against the seat--the shot goes right through her chest and the second one comes out and goes into her hand into the same place ..."

Dr. Peterson had given Christie permission to let the memo

ries out in the open and to tell. But Christie had hoped for more.

"I want my mom to tell the truth. Then I won't have to remember." Again, we hear the frenetic sequence of Diane's life. Reconstructed in the voice of the man she detests, it sounds far less

pathetic. Every facet of the case is in Hugi's mind--in perfect sequence. He is not overtly emotional, but he is unremitting. Hugi reminds the jury that Christie told Dr. Peterson that her mother didn't love the family--only Lew. And, after the shootings, Christie said sadly, "Mom didn't even say 'I'm sorry.' " He went as quickly as possible through Diane's affair with Lew. Told once, thrice, twenty times, even illicit sex palls.

"These are all [things], I submit--that border ... on fantasy and certain delusional thinking--consistent with many things she'd done in her life, feeling that she is going to be a doctor, she's going to be a successful business woman, pilot, going to own a big house. And when, in reality, she's failed at everything she's ever set out to do in her life. She's failed in her marriage, failed in her relationships with men. She's never followed through and completed anything--just bounced around from one thing to the next and failed--and that's where we find her up here in Oregon with a pretty bleak outlook . . . She can't go back to Arizona." Diane laughs suddenly. It is true; Diane does laugh when she takes a blow. The harder the blow, the merrier her laughter. Diane whirls to whisper to Jim Jagger. But her attorney is listening to Hugi. Color, the true barometer of her feelings, creeps up her neck.

Hugi has left her no place to hide; Diane is pinned to her chair, as Christie had been pinned back against the seat--all of |gg her failures paraded out in the light for the hushed room to ' * examine.

"... letters that are just dripping with love for Lew and he's basically written her off and she knows it now . . . She's got a problem with the demand letter--the $7,700 demand letter from Denver that she's got to pay [for the burned trailer] . . . Her "solution to that is to check into bankruptcy ... get a fresh start

. . She's stranded here in Oregon. She's got three kids and her parents and you know she's talked about how she gets on with them.

"... What's interesting then is to read her child abuse paper where she talks about just that situation--about how you get in a situation where the stress is too great, and you lash out at your children because there's no one else. And if you look at that child 444 ANN RULE

abuse paper, you see it's almost a cry for help or a prophecy of things to come in her life ..."

Diane's expression is one of amazement. She is dumbfounded that Hugi should connect the shooting to her paper. It is apparent that she has never noticed the parallels before.

Fred Hugi has not raised his voice until now. His examples all spring from Diane's life. She has talked so much, given so many interviews while he watched her on television, unable to respond. Downs's quotes are easy to come by; Hugi uses her own words to blast her.

"When she feels trapped, she suppresses her hostility and anger and then lashes out. That's a common pattern that she's developed over her life . . . You read that child abuse paper and you look at her diary entries on May 16, 1983: 7 am so trapped, I love you.'

"... she has no impulse control. It's like driving an automobile without brakes ..."

As Fred Hugi talks, Diane shakes her head more and more

forcefully. She is truly astonished by his conclusions.

It is 4:14. Hugi has finished his closing arguments.

Jim Jagger faces the jury with a friendly grin at 10:37 on Tuesday morning. He announces that he has scrapped his original presentation overnight. No more chronology. He will address the particular issues.

He asks for no emotion, for no speculation from the jurors-only that they listen to "cold hard facts." Seven points: Tracy and the bullets; Diane's statements at the hospital; her statements in June and July; Christie; the gun-related to Steve and Lew; blood spatter evidence; and Joe Inman. Can he really reduce them all to cold hard facts that prove Diane innocent--the injured party and not the killer?

Fred Hugi sits quietly, his expression one of the mongoose watching the snake.

"There never was--never will be--a time lapse," Jagger says with assurance. "That approach is like selling used cars--I'm gonna talk about the person really responsible--using the exhibits and the facts."

11 Jim Jagger is shooting his scattergun. He is here and there and everywhere. It is, Hugi knows, a time-honored and effective courtroom technique. Keep the jury off balance with a torrent of questions. Razzle-dazzle 'em. Hugi and Broderick believe that

Jagger has only to raise a 20 percent doubt to make it an equal push between his case and theirs. Theirs is the heaviest burden. Jagger agrees that Diane has "helped to paint a bad picture by some of the things she's done in the past. She's made a lot of people dislike her ..."

Diane nods her head, and chuckles.

It's impossible to dislike Jagger. He forgives Fred Hugi for his objections, admits he himself talks too fast, uses too much body language. He draws on an easel--wild, swirling lines apparently meant to demonstrate a point. But then he moves on, and

we forget that his drawings make no more sense than Johnny Carson's old routine: "Take the Slosson Cut-off--" He chalks in his points in capital letters.

Jagger blames the hospital personnel and the police for drawing the battle lines that first night--a largely male group who had observed Diane and decided "how a woman should react. That behavior colored the whole case from there on out. All of her behavior can be explained by her background . . .

"... Her reaction throughout is to comply . . . Steve Downs raped her. He raped her in more than one way . . . She reacts more like a male would--a stereotyped male ..."

Jagger telegraphs important information before he submits it. One piece of evidence deemed "BIGGER THAN LIFE" on his easel is her blue plaid shirt. "There's blood all over the ceiling thirty-two inches above the seat ..."

But only a fleck or two on Diane's shirt.

Jagger works rapidly--talking about blood types, blood spatter, blow-back, exit wounds, entrance wounds, positions in the car, small irregularities in testimony. As he covers so much territory, Jagger stops often to remind the jurors to ignore their "emotionality." Easier said than done.

Why had Christie said, "Mom did it"? She was simply confused.

| Jagger explains: stress and leading questions and suggestions land unconscious transference. "Children are more susceptible." Jim Jagger uses the term "We" constantly. He and the jury are as one. "We are tired," he comments.

True. "We" all are.

Diane looks blank--almost woebegone. Why? This is her attorney, fighting for her. Is it perhaps because she is silenced?

Jagger talks; she can talk no longer. She strokes her abdomen with the points of her long fingernails.

446 ANN RULE

Christie's picture was wrong, according to Jagger--and it seems important to him that the shooter holds the gun in the left hand. The picture had no plaid shirt. And what Christie drew seems to be a revolver, not an automatic pistol.

Jagger re-accuses Dick Tracy of tampering with the evidence, of planting bullets hither and thither to make a case.

"I submit to you that a witness who is false in part of his statements may be lying about others--"

Diane nods sagely. Fortunately, Tracy is not in the courtroom. He would not suffer this repetition kindly.

Again and again, Jim Jagger reminds the jurors that they must come to a moral certainty--that they have to be sure before they convict anyone.

Why did the authorities take so long to make an arrest? "I suggest to you that was because there was still some doubt . . . there's something else there--maybe something we didn't even know about ..."

He reads medical records. If he reads them all, we will be in this courtroom until Christmas.

But five o'clock comes first.

Jim Jagger has explanations for the alleged time lapse.

"Joe Inman came upon the Nissan eight-tenths of a mile away from the scene. He followed her two-tenths of a mile. He saw her for less than two city blocks. She was driving slower before and after Inman saw her. She did three things--tried to get

Christie to roll over; she wrapped the towel around her arm, and she opened the window ..."

Jagger's reconstruction sounds logical. Diane has raced away from the shooter, only to hear that her children are alive! She slows down to help Christie. The smells in the little car are overwhelming, and Diane has to get air to help her kids. Maybe she grabs the towel at that point to wrap around her arm. The defense attorney shouts, claps his hands together as he paces and bounces before the jurors. Why drive slow? Why not sit there and park? But her kids were gasping.