Small Sacrifices (56 page)

Whoever the shooter was, Pex is absolutely convinced that he/she fired from the driver's side, reaching around the driver's

, seat or between the bucket seats.

John E. Murdock, Director of the Contra Costa County Crime Laboratory in Martinez, California--and one of the country's leading experts in firearms and tool mark metals examination--

verifies what Jim Pex has said: Tool marks are almost as good as fingerprints.

The extractor removes the casing from the gun after the gun is fired. Then the extractor is forced back to the ejector and out the ejector port, where the cartridge is removed. Murdock had examined the suspect cartridges--both from the Glenfield rifle and the death car--under a stereo-binocular microscope for extractor marks on the rims.

"The extractor marks were close enough so that I concluded all of them had been fired from a gun with an identical extractor. I'm quite comfortable that the same extractor made the marks. When the claw-shaped metal moves over the softer rim, it marks it. If you unload a gun by hand--very, very gently--you may not leave a mark; but if you do it forcibly, you leave a nice mark. Every expert I consulted on these extractor comparisons agreed that it was a classic example."

Diane sits placidly with her hands folded over her stomach as the California criminalist testifies. She seems unaware that on the display board behind her the blow-up of a black Ruger semiautomatic is directly above her head.

She is anxious for her moment on the witness stand. She can explain all of this away. She is confident that the jury will believe her.

Dick Tracy testifies again about helping Diane draw a composite picture of the suspect with an Ident-a-Kit on May 20. "We began with the hair, and she picked a shaggy head of hair, and then she wanted more hair added. She wanted 'meaner-looking eyes.' " They had worked over the first sketch for a long time, and finally, after changing the chin line again and again, Diane had said,

"That's close enough . . . that's close enough." Tracy was present at the day-long search of Diane's duplex unit. All of the minutiae of her life, the stuff from the back of closets, papers jammed in drawers, now become Exhibits #220

to #333: letters, romantic cards, poems written for Lew, essays, calendars, half-filled-out bankruptcy forms, polaroid pictures. Tracy's voice drones as he reads off the list of items retrieved. A television set and VCR are wheeled into the courtroom. Diane re-enacted the crime for Jon Peckel's television camera four days after it happened. Dick Tracy portrays the suspect. Diane portrays Diane. It is a bizarre videotape. The slender blonde woman on the screen wears a sling-supported cast on her left arm. She is laughing as she tells Tracy how to approach her, changes her mind, and repositions him.

"I'm throwing the keys, OK?" She laughs again. And then Diane jumps into the driver's side of the car. She yelps and giggles. "This is worse than--"

Her sentence stops in midair. She has hurt her arm on the door jamb as she made her "getaway" and it seems that she was about to say, "This is worse than--the real thing." (. "Cheryl Lynn was on the floor board in front . . . with a sweater over her. She was asleep at the time. Danny was sleeping in the back."

Again Diane laughs on camera. Nervous laughter?

The television screen goes dark. Diane is smiling a little-here, now, in "real life." She trails her talon nails up and down her belly.

The court clerk carries in a portable stereo.

"Hungry Like the Wolf blasts through the small courtroom. The first sound on the tape is--eerily--a woman's trilling, heedless laugh. "I'm on the hunt--I'm after you . . . I'm hungry like the wolf--"

The act of murder is caught somewhere in that music, assaulting the ear unaware.

Covertly, listeners glance at the defense table. Diane is smiling broadly. It is enough to raise the hairs on the back of the neck. She whispers something to Jim Jagger, giggling.

Why doesn't the sound of this tape make Diane cry--or

vomit--or something?

She jiggles her foot in time with the music, snapping her fingers. When the title phrase comes around, she mouths the words: "Hungry Like the Wolf in time with the tape. The song lasts forever, bouncing off the acoustical ceiling and walls of the courtroom. The arrangement features extraneous noises in the background of the tape. Sharp reports--like gunfire. A snare drum, maybe. And screams. On the MTV video, the

piercing cries are the sound of the tiger-woman in orgasm. In the courtroom in Eugene, Oregon, for those ignorant of the visual script, the sounds are gunshots and children screaming in terror and agony.

Fred Hugi--who has barely glanced at Diane during the first weeks of the trial--turns in his chair and stares fixedly at her, his great dark eyes unblinking. She does not look at him.

The sounds like pistol shots come again, and then the breathy words and the chilling, high-pitched screams. Finally, the tape sighs to its end.

Diane still grins, her foot still moves rhythmically. The courtl room is as silent as if it were empty. The jurors' faces are gray. Diane looks terrible the next morning, her skin green beneath the pallor, mauve tracing the circles under her eyes.

Cops continue to take the stand. Jerry Smith, the detective sergeant from the Springfield Police Department who carried Diane's first diary to her--the diary full of unsent letters to Lew-begins the day's testimony, recalling impressions of the night a year ago.

392 ANN RULE

Paul Alton testifies only to those things that he has been able to prove; the jury will never hear about his frustration in digging in the heat beneath Diane's trailer, of all the avenues followed to a blank wall. Alton's presence on the stand is professional, dispassionate. He recalls learning from Steve Downs a few days

after the shooting that Downs had owned a .22 Ruger semiautomatic pistol, which Steve had last seen in Diane's possession. Alton identifies the Montgomery Ward sales slip for a brass unicorn.

It. Bobby J. Harris of the Chandler Police Department has accompanied Steve Downs up to Eugene. The Arizona detective holds in his hand a theft report filed by Billy Proctor on January 6, 1982, on a .22 Ruger. The serial number of the gun was 14761.87, Model RST6--according to the Chandler Gun Shop. Proctor bought it on January 30, 1978.

Harris verifies that he arrested Steve Downs for car theft on June 7, 1983, as a result of a tip from Diane Downs on the car theft insurance scam.

Paul Frederickson is a hostile witness for the State. Paul--who much prefers to wear his hair and clothes "punk"--looks presently as "All American Boy" as possible. Short and slight, he wears gray corduroy trousers and brand new black shoes. His brown hair is as straight and short as Beaver Cleaver's.

Hugi elicits that Diane has confided a great deal in Paul. She told him she was going to change her story from one man with a shag haircut to two men in ski masks. Frederickson testifies that he advised her, "If it's not true, don't do it--but, if it is, do it." And Diane had assured him, "It's true."

Diane had "morning dreams," her brother tells the jury.

"The kids were all alive. Danny was walking. Cheryl had blood on her shirt--but she was OK. They were all running from someone--and it was always Cheryl who knew which way to turn to avoid danger."

As far as Frederickson can recall, the dreams dissipated after Diane began therapy sessions with Polly Jamison.

"Did she display emotion--when she was in her room?" Jagger asks Paul Frederickson on cross-examination.

( "Yes--she was crying--it was muffled. To her, it was something personal." *

"Muffled--" Jagger prompts. "How--"

"It was muffled with a pillow--or something."

Ahh. Good. Jagger wants to show that his client is capable of tears.

"When it was just me and her, she showed emotion--but not with my parents ... In our family--my dad's quite the tough-type person . . . with a strong, bold front. He feels you should be able to contain your feelings and remain professional. Sadness and that stuff should remain private."

Cord Samuelson's fleeting affair with Diane has come back to haunt him. It is excruciatingly embarrassing for him to take the witness stand. Fortunately, Samuelson has already confessed his indiscretion to his wife.

"It was the day before the grand jury hearing," Samuelson recalls. "Diane came out on my route, and she asked me, 'Do you want to know what really happened?'

"I told her I thought I already knew. And then she said, 'It wasn't a shaggy-haired stranger--there were two men with ski masks. They called me by name, and they referred to my tattoo. They said, "If Steve can't have the kids, neither can you," and they began to shoot. 'They said, "Watch this, bitch," and they started shooting the children.'

"I asked her, 'Why don't you tell the police?'

"And she said, 'As crazy as it may seem, I want to protect Steve--because of the trouble he's already in--because of the arson charges.'

"I advised her to tell the cops the truth, and she said that her lawyer said it doesn't look good to change your story in the middle of a murder case. She told me not to tell anyone what she'd told me. She was convinced the cops didn't have the murder weapon. She asked me, 'How can they prove it without a

murder weapon?' "

"You were quite familiar with Diane Downs prior to the shooting?" Fred Hugi asked. I "Yes."

Tactfully, Hugi left it at that.

"Call Lewis Lewiston."

The gallery gasps. No, it is more a wave of sighs. He is actually here--the male lead of Eugene's "General Hospital."

Just as unabashedly curious, the entire press bench turns to gaze toward the double doors at the back of the room. Judge 394 ANN RULE

Foote raps his gavel for order. Diane has not moved, or turned her head even slightly.

Lew strides in from the corridor and, despite Foote's warning, the sighs reach a crescendo. He looks the part--every inch the southwestern hero, tall and tanned, his beard and moustache trimmed neatly. If he is nervous, he doesn't betray it as he moves forward to be sworn.

"I can't believe it's really him," a woman breathes. "Right here in Eugene."

Somehow, sometime--during the weeks of being cloistered in the windowless courtroom--reality has drifted away for many of the spectators. They are totally caught up with the leading characters. The trial has become fiction, an exciting diversion from their own lives.

Hugi steps almost immediately into Lew's intimate life. They must sting, these questions about the affair that began when he broke his elbow in 1982.

When Lew speaks, his voice is a rumbling drawl.

"My wife became aware of it on my birthday--September 12. I told my wife I has having an affair because Diane accused me of giving her gonorrhea. I said no ... [but] I had to tell my wife because I'd probably given it to her. On September 13, I tried to break it off. A gun discharged in Diane's trailer that day." There is no need for Lew to give the details of that gunfire-Steve had already testified to Diane's hysterical despair when Lew left her for the first time.

But the affair had continued; it accelerated, Lewiston says. Diane pushed him to leave his wife, to file for divorce. Sometimes he said he would--but he changed his mind. Back and forth, he'd wavered, with Diane pulling at him.

The children?

"I didn't see very much of the kids."

"From Christmas on," Hugi asks, "how were the . . . two relationships?"

Lew makes a Freudian slip as he tries to frame his answer:

"Worse with my life--er--my wife because I continued to lie to her. Diane wanted me to divorce my wife and live with her and the three children. I told her I just didn't want to be a daddy to <,her kids. I never wanted kids--or to be a father."

A crimson flush creeps up Diane's neck; otherwise, she shows no reaction. The man on the witness stand might be just another detective.

Still, if one looks closely, there is a tenseness in her body; every muscle under the seemingly blase exterior is taut. She leans over to Jim Jagger often, whispering and laughing derisively. She has to act as if none of Lew's testimony matters--who could

possibly believe that she ever cared enough about this man to hurt her children? But, even as she works to show disinterest and scorn, Diane's eyes fall on the new wide gold wedding band on Lew's finger.

She has not seen Lew for eight months--Lew, her golden

man she once could not live through a night without. When he leaves the witness stand, it is unlikely that she will ever see him again.

Answering Fred Hugi's questions, Lew moves verbally through the seventeen months he'd known Diane before she left for Oregon. By that time, her conversation had become "an everyday push for me to get a divorce, sell my house, and get up to Oregon with her. She wanted me to do it quick enough to come with her. I always said, 'If it's met to be, it will be.' I just hadn't made up my mind."

And the gun? What about the .22 Ruger?

"The few days before she left--four or five days before--she offered the use of her .22 pistol to me. Her ex-husband, Steve, was not my best friend to say the least . . . Steve threatened to beat me up."

Lew testifies that he turned down the pistol offer after considering the gift for a few minutes. "I saw it in the trunk of her Datsun the night before she left--the .22 Ruger."

"What day did she leave?"

"April 2, 1983."

Once Diane was in Oregon, Lew recalls, "It was basically a relief that she was gone, and I started to patch things up with my wife. Diane usually called me every day in the morning or evening. She sent letters every day. I began to refuse both the calls I and return the letters. I was back with my wife in two weeks." As Lew explains that her absence was "basically a relief," Diane's armor cracks visibly for the first time since he began to testify. She stares at him with an expression of ineffable sadness. He had not missed her; he'd only been relieved.