Small Sacrifices (64 page)

"Because she couldn't stand sitting along a dark road alone with dying kids." wf-Jim Jagger figures that Diane never even saw Joe Inman. And now "TRIPLE STAR MATERIAL!"

"A short while later, she's going fast--the kids are ALIVE

and gasping! What good did it do her to get to the hospital with

one dead and two gasping and still alive? Why not stay out there long enough for them to die? She would only get Mr. Lewiston if none of them was alive."

It is a salient point. Diane had repeated it often in her early press conferences. If she was guilty, why drive the victims to the hospital while they were alive? And why kill only one? Lew had made it clear he didn't want to raise any children.

Jim Jagger rearranges the time chart. He adds a few minutes here, a few minutes there—until he has shaved the prosecution's twenty-five-minute gap to less than ten.

Heather Plourd and her neighbor might have been off a few minutes on the time Diane left.

9:45 to 9:47 Diane left (extra two minutes).

9:47 to 9:55 to the north end of Sunderman (add one minute). 9:55 to 10:01 to the pull-out. Cheryl and Mom talk. Diane balances checkbook (add five or six more minutes).

r» Jagger allows two minutes for the shootings.

s 10:12 to 10:15 Diane leaves after shooting, and drives eighttenths of a mile before Inman sees her. She's slowing down to

save her kids.

10:15 to 10:18 She still takes care of the kids, going slow. 10:19 to 10:29 She's driving to the hospital. Arrives. Nobody notices the clock right away because they're too busy. So let's take away a minute.

Fred Hugi, sitting quietly, is sweating blood inside. With a dull, leaden feeling, he wonders if he is losing it. Jagger's own words seem to energize him as he prances before the jury. Key phrases leap out.

Triumphant, Jagger approaches a finish. "Now, there is no time gap there which would be a time gap when you take from people's testimony, you know, the worst of all possible worlds, but I suggest to you what we have done. I talked about each of these and indicated things that were left out, wrong assumptions that were made. I suggest to you that there was no time losses at all. In fact, actually things fit in—in fact, actually about perfectly when you think and walk through the events that happened." Jagger attempts to demolish the State's motive: an obsessive love for Lew. "It is bizarre. It is ridiculous. She's not naive . . . Why would she sacrifice her children for a man among many men?"

Lew has become an "arrogant, undependable, unreliable, scoundrel." Even if she didn't already have a new assortment of 448 ANN RULE

men to choose from, Diane would never have considered marrying him, Jagger announces, unless they had a "contract." He dismisses Kurt Wuest and Doug Welch as men who lied

to his client, who played "mindgames" with her, and then compounded their malicious intent by telling her right in the middle of her testimony that they were taking her unborn child away from her.

Jagger is winding up to a resounding finish.

"That man . . . has never been found . . . and I submit that gun, whatever make, year, etc. . . . walked away with him . . ."

"What happened to Diane Downs, the lady they messed with from beginning to end? They've taken her child away. I'll tell you what happened."

Jagger explains that as far back as June 4, Diane made references in her diary about reality--and unreality. At first, she had guilt, and then she got phone calls from other people terrorized by CSD. The fear. Confusion. Panic. Face scratching. Aloneness. No one fighting for you. Depressed. Suicidal . . . "All these things overlapping ..."

"The person who killed Cheryl, that shot Christie and Danny and Diane Downs was crazy. Had to be. Was drugged, must have been because it doesn't make any sense . . . what they're doing is messing with your [Diane's] mind. They can't do that anymore. You've heard all the facts. Allegations were made. Sometimes they were just mere allegations which were made without any suggestions, just with hope that you'd hear them and wonder and be suspicious. Thank God for afterthoughts ..."

Jagger urges the jurors to put themselves in Diane's place. "I suggest to you that you have an honest hesitation and that if you're putting your own money on the table--in your own affairs-that you would hesitate to put it out in front of you. And, I would suggest your hesitation which would be pretty well founded. Real well founded . . . The only decision is whether or not--is that it's proven or not proven beyond a reasonable doubt. . . It's a serious decision. One that has serious consequences. Mistakes are sometimes made . . .

"On behalf of my client, we ask you--we request that you return a verdict of Not Guilty and not based upon emotion, not (, based upon some feelings . . . What I ask you to do is go back and think about the facts. The emotion is real misleading. It really can [sic]."

Jagger apologizes for his eight-hour final arguments. Typed

later by a court reporter, they fill almost two hundred pages. On paper, Jagger rambles. To the ear, Jagger's arguments work—as he accentuates particular words and phrases.

Behind the press row, a spectator murmurs, "Hallelujah Brother!

Come forward, and be bathed in the blood of the lamb! He's better than the Reverend Jimmy Swaggart!"

But Jim Jagger has not named the real killer as he promised. Did the jurors pick up on that?

It is 3:20 p.m. on Wednesday, June 13. The jury has brought their suitcases this morning. They will take them home again, for one more day.

Fred Hugi begins his rebuttal, his last chance to speak; he is convinced that Jagger has neatly cut out his twenty percent wedge of doubt. They may have lost it all.

Hugi has to reverse that. No one is going to hurry him now. He points out that this is not a divorce trial; it doesn't matter what the ex-Mrs. Downs thinks of Mr. Downs.

"This is a very serious trial about three little children, two of them are with us still and both of them are permanently disabled now. Maybe we ought to come back to reality now, and let's look at ... who did this to" the children?

"In order to find that the defendant is not guilty, you've got to find that Christie is not truthful—discount her. You've got to find that all of these items dealing with the firearms tests are not accurate—that Detective Tracy came in here and committed a number of crimes, dummied up the evidence, and that the police—

other police officers—were in the conspiracy with him . . . That Lew is in on it because he talks about a gun that he never saw. Steve Downs is in on it because he's not telling us about a gun that he got back. You've got to find that ... the hospital people were—and are—telling lies anytime there is conflict with what Mrs. Downs recalls. You've got to find that Mr. Pex doesn't know what he's doing in the tests he performed ..." The two dozen tapes—"Does it seem to be a person who's nervous? A person under stress? I don't think so ..." It takes so long, this reweaving of the stitches in the fabric of the case Jim Jagger has ripped out. Hugi does it. He could have done it in his sleep. He knows where all the thin spots are. And now he picks up the orange and pinky-purple beach

towel that Judy Patterson unwrapped from Diane's arm on May 19, 1983.

450 ANN RULE

' Paul Alton has folded this towel in so many ways, trying to make the stains fit. It is obviously blood seepage, but he had to find which layer has been next to the skin, and which next, and next . . .

Alton has broken the code.

As the jury watches, Hugi folds the towel in half end-to-end, making a smaller rectangle. Next, he folds this rectangle opposite corner to opposite corner to form a triangle.

The blood spots match up. He shows the jury that the darkest stain is in the first layer that touched Diane's arm, and each layer up has less. All the perimeters match.

"What a nice neat pattern for someone to wrap themselves with ..."

This is why Diane lost no blood in the car. How extraordinary that she should grab frantically for something to wrap around her arm, and come up with a perfect triangular bandage . . . Hugi suggests that Diane prepared that towel-bandage beforehand, laid her arm in her lap atop the towel, shot herself, and then wrapped the ends neatly around her injured arm and tucked them in. Even as her children gasped for air, she had taken great care to protect herself.

The bloody towel--its puzzle broken--is a devastating visual blow for the defense.

It is more than Jagger can stand, even during closing arguments. He cries out that Hugi is bringing improper material into rebuttal.

Judge Foote overrules him. "You did argue that--that she wrapped the towel while she was driving. I think he can rebutt that."

Fred Hugi has come up with a word that describes Diane

Down's attitude toward children: fungible, m

According to the American Heritage Dictionary, "fungible" means: "Being of such a nature or kind that one unit or part may be exchanged or substituted for another equivalent unit or part in the discharging of an obligation."

Hugi has found the word chillingly apt. An aborted child can be replaced with a new pregnancy: Danny for Carrie. Cheryl is dead, but even now, Diane is growing Charity Lynn to replace her. Just as a mother cat or a sow counts her litter, needing only to come up with the same number, is it possible that Diane can destroy and replace her children at will, content that the numbers come out even?

^

Fred Hugi thinks so.

He likens her to a volcano, exploding under the pressure of stress.

The day ends with more words about blood. And the next

day begins with it. We are awash in it, our minds and souls drenched with red. Fred Hugi talks on, his voice still quite soft, empty of emotion, dogged as a marathon runner nearing the tape. He explains to the jury that the long wait to arrest was for Christie--so that she could learn to speak again. And feel safe enough to peel the layers from her memory

Hugi dismisses Jagger's revised time chart peremptorily.

"The re-enactment by Mr. Jagger ... is just wishful thinking, not based on any facts--just trying to reconstruct the evidence in a light that's most favorable to him--that he can live with. Problem is, he can't. Mrs. Downs took too much time to do this. To do the shooting and to wait before going to the hospital. Now, she may have used that time, taken some time to ditch the gun. It could be she may have also taken some time to make sure that, when she got to the hospital, that the kids were not in a state to say, 'My mommy shot me'--that they were sufficiently close to death where that wouldn't happen. She couldn't wait out there an hour--two hours . . . couldn't bring them in cold ..." Fred Hugi is dissecting Diane Downs. Is it wise? She sits before him, her maternity top actually shifting as the unborn baby kicks. Will the female jurors, in the last analysis, think it too much, his relentless pounding on a pregnant woman?

Or will they remember that this child too may be "fungible"?

"... What she is good at is one-night stands and affairs where there are no commitments required on her part. No--no real feeling, genuine feeling. She's quick to express 'deep concerns'

--she's very good at that--expressing deep love, deep feelings, deep emotions, but she's never able to show it. It's just not there

. Nobody is as selfish a person . . . She cares for no one but herself . . . We're told that she's such a 'Good Samaritan.' Quite the contrary. Quite the contrary. Diane comes first.

"... When you listen to Mrs. Downs on tape, you notice that she sounds as believable on those tapes as she does in court. She's able to project this same story, the same degree of feeling in whatever she's telling--and that's her problem. You get that with an accomplished liar, and people that are used to it do it all Ae time . . . You've seen that here. She, in her mind, reconciles ^erything. There's an explanation for everything. She never ad

450 ANN RULE

Paul Alton has folded this towel in so many ways, trying to make the stains fit. It is obviously blood seepage, but he had to find which layer has been next to the skin, and which next, and next ... W

Alton has broken the code. aa

As the jury watches, Hugi folds the towel in half end-to-end, making a smaller rectangle. Next, he folds this rectangle opposite corner to opposite corner to form a triangle.

The blood spots match up. He shows the jury that the darkest stain is in the first layer that touched Diane's arm, and each layer up has less. All the perimeters match.

"What a nice neat pattern for someone to wrap themselves with ..."

This is why Diane lost no blood in the car. How extraordinary that she should grab frantically for something to wrap around her arm, and come up with a perfect triangular bandage . . . Hugi suggests that Diane prepared that towel-bandage beforehand, laid her arm in her lap atop the towel, shot herself, and then wrapped the ends neatly around her injured arm and tucked them in. Even as her children gasped for air, she had taken great care to protect herself.

The bloody towel--its puzzle broken--is a devastating visual blow for the defense.

It is more than Jagger can stand, even during closing arguments. He cries out that Hugi is bringing improper material into rebuttal.

Judge Foote overrules him. "You did argue that--that she wrapped the towel while she was driving. I think he can rebutt that."

Fred Hugi has come up with a word that describes Diane

Down's attitude toward children: fungible.

According to the American Heritage Dictionary, "fungible" means: "Being of such a nature or kind that one unit or part may be exchanged or substituted for another equivalent unit or part in the discharging of an obligation."

Hugi has found the word chillingly apt. An aborted child can be replaced with a new pregnancy: Danny for Carrie. Cheryl is dead, but even now, Diane is growing Charity Lynn to replace her. Just as a mother cat or a sov/ counts her litter, needing only to come up with the same number, is it possible that Diane can destroy and replace her children at will, content that the numbers come out even?