Small Sacrifices (51 page)

Asked about the normal reactions to grief--and he had seen many--Mackey says people tend to react in a similar fashion with crying and disbelief although men are less overtly tearful than women.

On cross-examination, Jim Jagger attempts to modify the

picture Mackey has painted. "All you're saying is that during the five minutes she spent with you, she wasn't reacting? Isn't that true?"

"Yes."

"Would it be fair to say this was one of the most serious and emotional situations you have been in in your years in the ER?"

"Yes."

Mackey offers that he had already formed an emotional attachment to the Downs children when they were in the ER. "I'm that kind of person . . . We were very proud of the fact that we were able to save a couple of the children."

Jagger is careful; Mackey has clearly won over the jury. An overt attack on the doctor could be disastrous.

On redirect, Fred Hugi asks Mackey if he was surprised

when he heard that Diane was suing the hospital.

"Well, yeah--we saved two kids ... I felt we had been more or less heroic."

Dr. David Miller is next. He worked with Dr. Mackey over Danny and Christie when it seemed that they too were going to die.

"Christie was as near to death as anyone I've ever seen and comeback."

Miller relates to the jury Diane's reaction when he told her that the bullet had missed Danny's heart.

"She said, 'Far out!' "

And what was his observation of Ms. Downs's behavior?

"It was very consistent and remarkably unusual. She showed

| none of the cultural concepts of grief."

Miller's animosity toward Jim Jagger is unmistakable, but controlled. He explains that Diane made an attempt to remove Christie from the hospital and to bar access to the children by law enforcement agencies and CSD.

"It became clear that Christie's on-going medical care might be compromised by attempts to remove her."

Christie's custody had been given over to the witness and Dr. Steven Wilhite.

352 ANN RULE

* * *

Wilhite, the surgeon who operated on Christie Downs, takes the stand. He is a man with a presence. After racing to the hospital, he found Christie with no blood pressure, no pulse, dilated pupils, her skin blanched white.

"Essentially, she looked dead," he testifies quietly. He describes the emergency thoracotomy he performed to stop Christie's bleeding. As Wilhite speaks, his voice takes on a richer timbre; he describes what is--for him at least--the typical reaction of a mother who learns that her child has died. "Their souls are just wrenched from them." Diane's response was "what shall I say--a bit bizarre." Wilhite's voice grows heavy with remembered emotion. He offers Fred Hugi three examples that gave him pause as he confronted Diane Downs.

"I think one example was her concern for her car--and then that her vacation was 'spoiled.' "

But the third point--the incident that had troubled him the most--was when Diane entered the room where he was treating Christie. She had turned to Wilhite and said, "I know that Christie has sustained brain damage, and I don't want you to sustain her life."

"That was very unusual! And inappropriate..'" Tests had yet to show any brain damage.

Each of the three physicians has demonstrated that doctors do not become inured to tragedy. Wilhite bristles as Jagger questions him about why no one signed permission slips before the

children were treated.

"We're dealing in seconds here--seconds not minutes--finding someone who will sign a permit is ludicrous." Wilhite's voice rises, and he cuts offJagger's next question. "I didn't meet Mrs. Downs until after surgery. When I'm in surgery, there isn't time for chitchat."

Jagger and Wilhite are wrangling in earnest.

"What did you do after the conversation with Ms. Downs?" Jagger asks.

Wilhite smiles thinly. "I continued to prolong life."

"Isn't it possible that she said--if she has brain damage, is it realistic to continue to prolong life?"

."No."

"But isn't it possible--" ^"No. I said what she said," Wilhite thunders.

"No further questions."

* * *

Carleen Elbridge, the X-ray technician, recalls her meeting with the defendant the first night. Diane Downs had worried about having her picture taken without make-up as her injured arm was X-rayed. Yes, even as her children were dead and dying.

Dr. Bruce Becker takes the stand. Becker cared for both

Danny and Christie in the intensive care unit. He explains what Danny's wound means. There is no motor function or feeling in Danny's legs. He has lost organ function; he cannot voluntarily

control his bowels or bladder. The chance that he will be able to use his legs again is "very slim."

Christie has survived two chest wounds, a bullet through her hand, and a stroke affecting the left side of her brain. A middle cerebral artery clogged, and with that, Christie has lost the easy use of speech. Her right arm and hand are still paralyzed to a degree.

Becker explains how Christie's speech problems manifest

themselves. He uses an angiogram (where air and dye are pumped into the brain to show areas of damage) and a chart of the left side of the brain to give the jury a crash course in speech pathology after a stroke.

"She searches for words. She may, for instance, find a symbolic value--she may call a pencil a pen. But her 'feedback loop'

is intact. She will know whether she is right or wrong--but her signal process is delayed . . . Her comprehension is the same as it was."

Fred Hugi asks a very important question. "Do you have any evidence at all that she's experienced a memory loss?"

"To the best of our knowledge, it has not been damaged." Dr. Becker explains memory, stressing that it is not easy to tamper with human memory. Stroke patients--patients with injuries to speech centers--may not be able to say what it is that they remember, but that does not mean they do not remember.

Christie Downs's speech difficulties would be exacerbated under stress, Becker explains. She might well make mistakes, but she will know instantly that she has done so. "Even when I first saw Christie, I was aware that she knew of errors and that she tried to correct them."

At the defense table, Diane flips her hair from her forehead, toys with a pencil. She is either truly serene, or she possesses an almost superhuman ability to appear so. She looks very pretty in 354 ANN RULE

a light blue, long-sleeved taffeta blouse, topped by a maternity vest.

She has heard medical testimony all morning--testimony that went into agonizing detail on how her children had suffered and how one had died. And she heard doctors and nurses say that she scarcely seemed to demonstrate grief.

And now. She must have known what was coming.

Christie.

Christie Ann Downs--the baby who was the first creature in the world to truly love her--her favorite child. Christie will walk into this courtroom, climb up on the stand--and what in the world will she say?

Diane has not seen her child for seven months--two weeks before she conceived "Charity Lynn," who kicks now in her belly.

After the lunch break, a shining gold unicorn statuette rests on the bailiffs bench rail. Few in the courtroom understand its significance, but it is certainly an item of curiosity.

Diane, of course, knows what it symbolizes to her. That

gleaming unicorn is Cheryl--it means that Cheryl will never die. All along Diane has told the television cameras and the

newspapers about the love she and Christie share, about Christie's extraordinary intelligence: "She may be the only one to get me out of this ..."

m

They had planned this so carefully, cushioning Christie between two doctors--Dr. Becker first, and then Carl Peterson, each to explain why Christie expresses herself the way she does. Fred Hugi did not promise the jury what Christie would say. He did not know what--or how much--she would be able to say in this frightening courtroom environment.

"If there was ever a time that Christie might lie, this would be it," Hugi remembers. "She could say she didn't remember, to remove herself from the case--and who would blame her? She might be thinking that 'My mom's more powerful than the State-she got me back once [with that October sneak visit], and I'd better side with her--because she's the winner and she'll probably get me back again. Mom's all powerful. Mom blasted me--but I probably deserved it.' There were so many reasons for Christie to suppress her memory--and even to lie."

They have tried to make it as easy as possible for Christie.

"We couldn't ask too many questions, but we set the groundwork ... to show if she doesn't answer, that it isn't that she doesn't

remember . . . We know she remembers--we can't be sure that she will be able to find the words," Broderick explains. They don't know if Christie can do it--with her mother

|staring at her. Christie's entire foster family is in court to bolster her.

Hugi suspects that Jim Jagger is deliberately dragging out his questioning of Becker so that Christie's testimony will be spread over two days. Uncharacteristically, he mutters an epithet at Jagger. Exactly three hundred sixty-one days after she clinically died, Christie Downs is scheduled to testify. It will take the rawest kind 356 ANN RULE

of courage for this little girl to do that. To get up there in front of a judge, fifteen jurors, eighty spectators.

And most of all ... her own mother.

All morning there has been a conspicuously empty space in the left side of the second row. Just after lunch, Ray Broderick leads a child to that seat—a very pretty little girl with light brown hair cut in a pageboy with bangs. She looks to be about nine. She wears a navy blue suit-dress, trimmed with white lace at the collar and cuffs. The little girl sits down next to a teen-age boy, also a new face in the gallery. He holds her hand protectively. The room quiets, and then hums with expectancy. Is this the child who will tell what really happened that night?

Odd. Diane scarcely glances at the little girl. Her expression is bleak this afternoon, and she covers her cheeks with her hands—so that it is impossible to read her feelings. But Diane isn't crying.

She knows this isn't Christie.

The little girl is Brenda—Christie's foster sister and best friend.

Suddenly, a door beside Foote's bench opens and another

child walks into the room. Her outfit and hairdo are identical to Brenda's. Christie looks first at the floor, and then, very slowly, she lifts her gaze. Her eyes meet Diane's. Mother and daughter stare straight at each other for a beat, and both begin to cry. Diane looks away first, and Christie dabs at her face with a large lacy pink handkerchief, holding her left hand to the side of her face.

Her right arm hangs limp, useless.

This is the most difficult moment of the trial for Fred Hugi.

"I'm thinking about what she was like when I first saw her—and, before that, when the blood was gurgling out of her—and about when Diane had her for hours in October. And yet, Christie's still HERE. She's only talked about the shooting with me twice before the trial—and all those people are out there gawking." Christie takes the stand, lifting her dead arm with her left hand and laying it carefully in her lap. Her face is full of fear and pain and a kind of hopelessness. The stroke has left her with slight facial paralysis; one corner of her mouth droops, making

'her words blur. She can say "yeah" more easily than she can say

"yes." Mr. Hugi has told her that would be all right. Christie occasionally glances down at the defense table where her mother sits.

No mater how much preparation has been done, no matter

how many sessions with Dr. Peterson, no matter the presence of her dearest friend out there in the gallery. No matter that Diane sits smiling fixedly at her twenty feet away. Christie Downs is all alone. She cannot stop crying, but she will not run.

Diane leans forward at the defense table and smiles harder at Christie.

Fred Hugi walks close to Christie. She knows him; this is her friend, the same friend she's visited for weeks, who has helped her get ready for today. Now, she looks into his eyes and takes a deep breath.

He doesn't know if she can do it or not. He doesn't want to qualify her as a witness yet; first he has to be sure she can speak in the courtroom. He will have to demonstrate to the court soon that she is competent—but first, he must cut the rest of the courtroom away from him and Christie, tune the gawkers out so she can say what she must.

Hugi's voice is very soft as he begins.

VERBATIM:

"Christie, do you feel okay?"

(Witness nods head.)

"You're going to have to talk to all these people here. Can you tell me your name?"

"Christie Ann Downs."

"How old are you?"

"Nine."

"What grade are you in?"

"Fourth."

"Do you know your teacher's name?"

"Yes."

"Can you tell us her name?"

"Miss Bottoroff."

"Did you go to school today?"

| "No."

(Christie's voice is tremulous, almost a falsetto. She is trying so hard.)

"You had to come to the courthouse?"

"Yes."

(Christie's face is very red.)

"We've talked about this day before, haven't we? —That this day would happen? Have we talked about it?"

"Yeah."

358 ANN RULE

Hugi holds his breath. He has to ease Christie into this. At grand jury, Christie burst into tears when he asked her only to say her name.

"OK. Christie, do you remember back to the day when you got shot? Can you remember?"

"Yes."

"Do you remember if you went to school that day or not?"

"Yes, I did."

"Do you remember where you went when you came home

from school?"

"Yeah."

(Judge Foote interrupts Hugi's questioning here to remind him to inquire as to Christie's competency.)

"Yes," Hugi said. "I haven't lost sight of that."