Small Sacrifices (54 page)

Christie had finally confided that she no longer wanted to live with her mother

"Maybe she didn't really love the family," Christie wondered.

"She just loved Lew."

Christie wrote down two lists of people in her life. One list was a "safe" list; one was the "unsafe" list.

Myself (Christie)

Daniel

Cheryl

Mom

Maybe my dad

Dr. Peterson

H Evelyn and Ray Slaven

Susan Staffel

Ray Broderick

Fred Hugi

The safe people were all new in her life--all but her brother and sister. Christie Downs had had no "safeness" in the first eight years of her life.

376 ANN RULE

On re-direct, Fred Hugi hands the still-sealed envelopes to Peterson. Christie has given permission now to open them.

"Would you open the envelope dated January 2, and read what it says?"

Peterson's voice cracks as he reads the question: "Who shot Cheryl? The answer written here is 'Mom.' "

"Would you open the envelope dated December 19?" Peterson read the contents: "Who shot Christie?" "The answer is the same. 'Mom.' "

"In the course of your entire association with Christie, has she ever indicated that anyone other than her mom shot her?"

"No."

"Has she ever given any other version of the story?"

"No."

"Are you aware of anyone influencing Christie not to talk with you?"

"Yes."

"Who was that?"

"Mrs. Downs."

"Has Christie expressed an apprehension and fear of her mother as well as love for her mother?"

"Yes."

"Did she indicate to you the order the children were shot in the car?"

Peterson nods. Cheryl was first, Danny was second, and

Christie thought she herself might have been shot twice. Carl Peterson testifies that Christie said she enjoyed living with the Slavens because "they don't yell or spank." He has heard Danny say to Christie, "We might get shot again."

"Christie said, 'Sorry, Charlie.'

(This is a slang expression from a tuna fish commercial that means "It will never happen.")

"I asked her how she knew that, and she said, ' 'Cause she doesn't know the address of the Slavens.' "

Dr. Edward Wilson, who performed the autopsy on Cheryl, is next. As he speaks, the jurors pale noticeably. Diane is absolutely immobile, her hands quiet on the arms other chair.

Wilson's photographs are accepted into evidence. "The cause of death was two gunshot wounds through the upper body, through the aorta. She bled to death."

Juror #12 looks nauseated as Wilson continues in his description of the last moments of Cheryl Downs.

None of the jurors--save #8--will look at the defendant. The parade of policemen begins. Policemen say "Sir" when they testify. They do not volunteer information; they answer questions. One by one, they tell of their contacts with Diane Downs, of what they remember of May 19, 1983. Most of them refer to notes as they speak. But only for specific details. The woman herself-who sits before them--they remember perfectly without prompting. Rob Rutherford reads from his notes. Just before he left the hospital with Diane on May 19 to go back to Old Mohawk Road, Diane had laughed as she said, "I hope you have good insurance. If I die out there, I'm going to sue you! And I'll come back to haunt you."

Rob Rutherford is still on the stand the next morning. Jagger infers that he did not look hard enough for the gunman and the yellow car the night of the shootings. Rutherford will not be shaken. There was no sign that any vehicle had been recently parked along the road: the sheriff's sergeant had just completed a tracking course.

Tracy is next--the gallery tittering at "Dick Tracy." Tracy verifies how incongruous the defendant's behavior was, recalling her continual babble about a boyfriend in Arizona instead of concern for her injured children. Diane told them where the rifle was, read the consent to search aloud, and then signed it. And Tracy had taken it to Sergeant Jon Peckels.

The best piece of physical evidence the State has is the microscopically identical match between the extractor marks on the casings from the death bullets and those of the two bullets in the .22 rifle home in Diane's closet.

Jagger suggests to the jury that the chain-of-evidence has been broken, the bullets mixed up. He asks for a play-by-play

| account of Tracy's day. He is looking for a slip somewhere. Most defense attorneys don't have the temerity of nitpick with civilian witnesses; cops are fair game.

Diane seems either exhausted or bored. Her eyes are puffy with fatigue, and her arms rest heavily on her chair.

"You didn't make any notes about the order of how the bullets came out of the rifle, did you?" Jagger asks Tracy.

"I did not."

378 ANN RULE

"Detective Tracy, you've been investigating homicides where you know who did it--and couldn't prove it. Isn't that true?"

"Yes.. ."

"Isn't it true that you got a bullet from the scene, from another officer present--and put it in the rifle?"

Tracy's face turns a shade of magenta. You do not ask an honest cop a question like that.

"That is a lie," he says evenly. "That is not true."

"Do you deny then that you could have placed two bullets within the rifle, or you could have placed two bullets in an envelope--bullets that didn't come from the gun? You deny that, don't you?"

Tracy just may go for Jagger's throat. "You bet I deny that!" Dick Tracy had solved every murder case he ever investigated; in his last year on the department, he was not about to start faking the evidence.

Judge Foote pounds his gavel--for a judicious break.

Jon Peckels is next. He has twenty-one years with the Lane County Sheriffs Office, assigned currently to the Identification section, and in charge of preserving the physical evidence in the shootings. At fifteen minutes to midnight on May 19, Shelby Day gave him one bullet, a bullet that had fallen from Cheryl's clothing as she was placed on the treatment table. Dr. Wilhite gave him another bullet.

Ever since that night, Peckels has watched over the chain of evidence. If even one link is broken, the evidence is flawed. He has guarded the children's clothing and the bright colored beach towel. He has the gun residue kit and the trace metal tests made at the hospital at eighteen minutes after midnight.

Roy Pond slowly opens the brown bags containing the small garments. A miasma, real or imagined, seems to rise from clothing sodden with long-dried blood. Pond pulls out a green shirt with a yellow collar with a dark red blotch in the center. He I.D.s Danny's OshKosh-by-Gosh jeans, Christie's maroon pants.

Diane turns her head away and stares down at her hands. She begins to doodle again on the yellow pad in front of her. Tears run down Roy Pond's face as he holds up Cheryl's

gore-marked purple and white T-shirt, cut at the seams by someone in the ER a year before, and then the postal sweater--Diane's--

that Cheryl had around her shoulders when Shelby Day carried her in.

"These are the shorts from little Danny Downs." Pond's voice cracks. They are such improbably tiny white jockey shorts. Diane has not looked up since Pond began.

Diane's ex-husband takes the stand.

Steve Downs is still a handsome man, compactly built. He wears gray slacks and a navy bluejacket; he speaks quietly. Steve goes through his twelve-year history with Diane. Her expression indicates that his testimony is a joke.

Occasionally, Steve Downs is laughable, and Judge Foote

must admonish those in the back not to react with chuckles at his testimony.

The marriage was good, and then "iffy," and then bearable, and then bad. He was aware of his wife's lovers. He had thought her a little crazy, sometimes suicidal; she tried twice to shoot him in a three-month period in 1982.

"Have you beat her?" Hugi asks Downs. "If you have, tell the jury about it."

Downs nods. "The first time—when I found her with Russ Phillipsinbed."

Diane gazes down at the defense table.

Another beating: "She picked up the girls when they were living with me and left me a note 'You are a%%%####&& father.' I was gone—the kids were next door with a neighbor. I went over to her house—her mobile home. Cheryl and Christie were playing outside. I was pretty pissed-off about that . . . She was on the phone—ignoring me. I took the phone away from her and put my hand on her throat. Then we just really got into it. I pounded her—pounded her hard. There was blood. Cheryl saw me hitting her mother."

Hugi asks Steve if he has been convicted of crimes. He will beat Jagger to it.

"Yes, I have—grand theft—auto. I reported my car stolen to the insurance company. It wasn't stolen. I was convicted last summer, in July, after the shooting happened here. Diane saw that I wasn't in her camp with the whole story. She called down to the Chandler Police Department. I owned up to it."

"The mobile home fire—" Hugi begins. "Tell us about that."

"Diane and I planned it. She talked about pouring gas on it. I 380 ANN RULE

told her it needed to be done with some discretion. It was started by me--in the bedroom . . . The insurance paid."

Diane shakes her head in disgust.

"Did you ever show Diane Downs how to operate that weapon

[the missing .22 Ruger]?"

"Yes sir. I gave it to her when she was living at the mobile home by herself ... I got it back ... I assumed it was on a shelf in the closet where I left it. She wanted the guns. I didn't see any need for her to have them."

On cross, Jim Jagger asks Steve to discuss the sexual relationship between him and Diane after the divorce.

"It happened one time--it was very cold and callous. I absolutely could not bat against the guy [Lew]."

For once, Diane agrees with Steve. She nods vigorously. And then she grins and passes a note to her attorney.

Steve Downs admits to stealing guns from Billy Proctor.

"Technically yes." -4 "Isn't it true that you were having affairs?"

"No. Diane said that to justify her own affairs."

"You two have some pretty hard feelings, don't you?"

"Yes. They've [the DA's office] showed me what they have and I'm satisfied with it."

"Did you look for that gun?"

"Once the kids were shot, I looked for the gun."

"In a phone call a week after, she told you about what vehicle the gun was placed in?"

"Yeah--it was her idea, and a wild one in my eyes. That gun was not in my house or storage place ... I never looked for it until after the shooting and when I did look for it, it wasn't around."

"You wouldn't have been inclined to give that gun to the police in any event--"

"Yeah. I would have immediately given it to the police 'cause they could have matched the bullets to the gun ... I knew then that she had absolutely nothing, no caring at all for the kids." The weekend comes and with it, real spring--sunny, warm and full of promise: May 19 again.

tltfl

Diane's due date is supposed to be in July, but rumor says June. Female spectators watch Diane with the eyes of experience to see if she has "dropped." She looks close to term. The emotional strain alone would be enough to send an average woman into premature labor. But then Diane has never been average.

She sweeps in dramatically Monday morning, May 21, dressed in a royal blue maternity dress patterned with flying gulls. She smiles at the relieved sighs in the gallery. She looks very well. It is the prosecutor who seems to be wasting away day by day. Fred Hugi has lost so much weight that he has to cinch his belt several holes tighter. He cannot hold down solid food, and he exists on milkshakes and yogurt. If he could spare the time to run, he might work through some of the tension--but there is no time. He is scarcely eating, and he is not sleeping. Every night, like clockwork, he awakens at three with a throbbing pain in his jaw that brings him right up out of bed. He went to his dentist on May 18 but X rays revealed no overt problem. His dentist, aware of the trial stress, diagnosed, "It's all in your head. Ha. Ha." During the day, Hugi is so wrapped up in the trial he can ignore the pain. But it comes back every night. He is aware that [tension can trigger psychosomatic pain, but this is beyond any'

thing he ever imagined. (After the trial, when the pain continued, he insisted upon another X ray, and his dentist found the problem. Hugi had clenched his teeth so hard that he had split a tooth vertically, such a clean crack into the nerve that it looked normal in the first X ray. An oral surgeon attempted a root canal filling, but the tooth fell apart. When it was pulled, the pain "in his head" vanished.)

* * *

382 ANN RULE

On May 21, the courtroom has been transformed. The mock-up of Diane's car is in place, filling much of the space between Judge Foote's bench and the defense/prosecution tables. The roof is off and set to one side. This car is not red, it is pale blue--so that the outlines of blood pools will show. The names of those who bled there are written in. Just like the real Nissan Pulsar's, the front seats are buckets with head rests, the back a bench seat. The dolls are in the courtroom this morning. They aren't as realistic as the car is--only large white rag dolls that will bend into different positions. Their eyes are black felt, mouths rosebud pouts. The Christie-doll has hair of reddish brown yarn, and the Cheryl-doll's hair is made of lighter brown yarn. The Danny-doll's hair is bright yellow. They are exactly the size the Downs children were on May 19, 1983.

"Cheryl" and "Christie" wear blue jeans, and "Danny" wears tiny shorts and small running shoes. A single lock of yarn has worked loose of its stitching and hangs over "Cheryl's" eyes. Unconsciously, Fred Hugi bends over and brushes the lock of

"hair" away from her eyes. Hugi invariably cradles the "children" in his arms as he talks about them. Jim Jagger, on the other hand, tends to toss them on the floor when he finishes with them--as if to underscore the fact that they are only rag dolls. This is a mistake. It jars the heart each time one of the dolls crumples to the floor.