Is Diane Downs Innocent 5-17-13 — Transcript

Full transcript

1. 0:01I'm here with Eric Mason and James
2. 0:02Frederickson Eric is a reporter turned
3. 0:05private investigator who covered the
4. 0:07Diane Downs case 30 years ago a a
5. 0:09shooting happened that involved her
6. 0:11children James Frederickson Diane Down's
7. 0:13brother he's um James is looking for
8. 0:16information at this point there are
9. 0:18questions about the conviction Eric you
10. 0:20were there can you start by explaining
11. 0:22what uh what your memories are about the
12. 0:24Diane DS case that you covered and and
13. 0:27the fact that your timing as a reporter
14. 0:29was very much in with this case well I
15. 0:32was just a brand new recruit there at
16. 0:35the NBC station I had just finished
17. 0:38University of Oregon school of
18. 0:39Journalism and came to work there we had
19. 0:41put kmtr on the air and those first two
20. 0:44weeks some of the newscasts were without
21. 0:46sound um and so uh we were this
22. 0:49fledgling news Operation and certainly
23. 0:52it was the biggest story in town it was
24. 0:55the biggest story in the state it became
25. 0:57National and you know for all of us it
26. 0:59was this huge opportunity because here
27. 1:02was a gigantic story in our our backyard
28. 1:05absolutely gigantic James let's go right
29. 1:07back to the beginning I mean what a
30. 1:08shock it must have been for you to hear
31. 1:10this can you tell me how the information
32. 1:12initially came to you so I was on my
33. 1:15house and Loi California and the phone
34. 1:18rings like 2:00 in the morning and it's
35. 1:21my dad on the other end and he says your
36. 1:24sister and family have been aack and
37. 1:27your nie Cheryl is dead
38. 1:31it's
39. 1:32just surreal I don't imagine yeah that
40. 1:34you even ever completely recover from
41. 1:36from news like that so here you are 30
42. 1:39years later and you have questions about
43. 1:43a lot of different components of this
44. 1:45case absolutely um and in a general
45. 1:48sense you keep learning more every every
46. 1:51day that I read on this I mean it's um I
47. 1:55mean she never held the
48. 1:56gun let's let's talk about that for a
49. 1:59moment um ballistics in court
50. 2:02demonstrate that when a person fires a
51. 2:04Gun there's blowback it covers their
52. 2:06hands this didn't exist no um actually
53. 2:09the night of the shooting um they put
54. 2:11this liquid to check to see if she held
55. 2:13a gun bared a gun and it was dripping
56. 2:16off her
57. 2:17hands um it did it at 2: in the morning
58. 2:20I believe is what it was and she never
59. 2:23held the gun she had never fired a gun
60. 2:27um didn't had any blood powder on blood
61. 2:29better on here no gunpowder res nothing
62. 2:33Eric you covered the case almost in its
63. 2:35entirety um you were sharing some
64. 2:37thoughts earlier about you know when you
65. 2:39look back and what what's your
66. 2:41impression of that of that experience in
67. 2:43that case well a number of other
68. 2:46reporters covered the actual night that
69. 2:49had happened and the some of the
70. 2:51aftermath so I came in later I was
71. 2:54working by the time the trial happened I
72. 2:57was working um for the CBS station
73. 2:59Portland and covering the trial every
74. 3:02day and so my experience is kind of
75. 3:05through the lens of the trial and
76. 3:07watching the defense work watching the
77. 3:09prosecution work and really coming to
78. 3:12some kind of conclusion that the defense
79. 3:15that was mounted was not very aggressive
80. 3:18I mean really it was more along the
81. 3:20lines of here's Diane here are the
82. 3:23pictures of her life how could this
83. 3:25woman yeah have done this crime and they
84. 3:29really didn't attack things in terms of
85. 3:32alternate suspects developing the
86. 3:34alternate suspects going and looking at
87. 3:37what later becomes a person of interest
88. 3:39in the case you know after after the
89. 3:41fact now and so as a result I think
90. 3:44really the jury really I think was uh
91. 3:48very well molded by the prosecution who
92. 3:51had you know um a very good narrative
93. 3:56set up for Diane and the motives for why
94. 3:59she wouldn't want to shoot those three
95. 4:02children if all the information from the
96. 4:05uh prosecution if everything they had
97. 4:07wasn't shared with the defense um as you
98. 4:10were explaining earlier 50 Shades of
99. 4:12Gray this a very complex case would it
100. 4:15would that not make it easier for either
101. 4:17side to perhaps you know throw
102. 4:19information in that I mean it it gets
103. 4:21complicated can a jury really keep up
104. 4:23with Ballistics and this type of thing I
105. 4:25mean well I think they can I think a
106. 4:28jury uh really
107. 4:30juries are for the most part fairly
108. 4:32intelligent and follow the information
109. 4:35but when they're not given something in
110. 4:37the alternative that is that this could
111. 4:40have been done by a biker gang this
112. 4:42could have and and to be able to develop
113. 4:46um an alternate theory of what happens
114. 4:48there doesn't seem to be really an
115. 4:50alternative Theory by the defense except
116. 4:52this Shaggy haired stranger did it and
117. 4:55that was kind of laughable people people
118. 4:58heard that and just thought to them eles
119. 5:00that sounds like a story um and because
120. 5:03there was no name or Identity or
121. 5:06fleshing out of this shaggy hair
122. 5:09stranger it just seemed like a myth you
123. 5:13know at the time of the trial right
124. 5:15stuck to the story though didn't
125. 5:17they yeah you know and you know it is
126. 5:23laughable um what if it's
127. 5:26trueth you know and and and reading
128. 5:29about over the years I've always
129. 5:30wondered and and from the standpoint of
130. 5:33you know someone who does criminal
131. 5:35defense now and post conviction relief
132. 5:37that um missed opportunities by the
133. 5:40Defense form what becomes uh ineffective
134. 5:45assistance of council that then becomes
135. 5:48the potential for a new trial for
136. 5:50somebody like yeah and he was quoted as
137. 5:52saying actually um that you know there
138. 5:54was 300 pages with all the news quoters
139. 5:57saying if I had access to those I could
140. 5:59have put on a better defense and this is
141. 6:01I don't know what exactly his wording
142. 6:02was this is Mr Jagger yeah yeah okay now
143. 6:05let's talk about the fact that U the
144. 6:07oldest daughter of Diane DS ultimately
145. 6:09gave Court testimony but this child was
146. 6:12also adopted by the district attorney
147. 6:14was it was Fred hugi the da him was he
148. 6:17the actual da or was he prose okay
149. 6:19Deputy da have you ever heard of that
150. 6:22happening before where a a convicted
151. 6:24murderous has her children adopted by
152. 6:26the person who's pressing the case
153. 6:27against her I haven't
154. 6:30um and I think that was a question I
155. 6:31think at the time that people were
156. 6:33asking was what is the objectivity level
157. 6:37what is the role of someone who's a
158. 6:40prosecutor and obviously he cared deeply
159. 6:42for what had happened to those kids and
160. 6:44I knew a reporter who went down and
161. 6:47spent time with some time with Fred and
162. 6:50those kids and just got a portrait of
163. 6:52what their life was like after it had
164. 6:54happened um but
165. 6:56certainly uh I think if you do this work
166. 6:59you you do have to step back a bit from
167. 7:01it and be objective even when you have a
168. 7:04client who uh you're working on their
169. 7:06case and you're trying to be an advocate
170. 7:08you really do have to deal with the
171. 7:09facts and the truth and everyone has to
172. 7:12deal by those same set of facts so um to
173. 7:16the extent that you know it was heroic
174. 7:18of him yes is it's something that we all
175. 7:20sort of wondered about as journalists at
176. 7:23the time we wondered about it you know I
177. 7:27I really um you know it's like people
178. 7:30call it heroic you know because he was
179. 7:32he was such a wonderful man that he
180. 7:34would adopt these poor stricken children
181. 7:38um that he would take them and he would
182. 7:42look over the the mask and see Christian
183. 7:45and how she was such a helpless child
184. 7:47that she needed somebody to care for her
185. 7:49and protect her from the from the big
186. 7:51bad woman
187. 7:53World um but you know it's like did it
188. 7:56ever really occur to anybody that the
189. 7:57adoption didn't take place until you
190. 7:59know two years after the
191. 8:01sentencing yeah that's an unusual effect
192. 8:04as is the fact that her son Danny
193. 8:06Diane's son said the bad man and can you
194. 8:10talk about that James yeah so
195. 8:13there's the witness the testimony of
196. 8:15Danny wasn't allowed at court um
197. 8:18because they made agreements that his
198. 8:22testimony wasn't going to be at court um
199. 8:24but the hospitals clearly wrote down in
200. 8:26their nursing reports that the mean man
201. 8:28shot
202. 8:30um you know and it's documented more
203. 8:33than
204. 8:34once and so they weren't allowed to give
205. 8:37that testimony at court
206. 8:40um I just learned the other day that
207. 8:44during the closing statement of Fred
208. 8:46hugi I guess that he mentioned that I'm
209. 8:48going to going I have the court
210. 8:49transcripts and I'm going to go through
211. 8:50that to see it's fact
212. 8:53and he actually mentioned Danny in in
213. 8:56his closing AR arguments thus causing a
214. 9:00breach and counts for mistrial because
215. 9:03he was breaking the rule only rules that
216. 9:05he set during his final closing argument
217. 9:07can you talk about an Rule and what what
218. 9:10did that mean to have this famous writer
219. 9:12in the courtroom what was the impact of
220. 9:14that how did that make he was a reporter
221. 9:16field well an sat next to me a lot of
222. 9:19the time and uh you know it get let a
223. 9:22certain star power to the room and you
224. 9:26know the fact that she was there in a
225. 9:29way
226. 9:29I guess you could say reinforc the fact
227. 9:32that she was going to be doing a book
228. 9:35and you she really doesn't come from the
229. 9:37standpoint of the wrong guy did it she
230. 9:40really that's not a part of her genre
231. 9:42It's usually the genre that she writes
232. 9:44about is this is a trial the person did
233. 9:47it they're going to go down the the
234. 9:49detectives are the people that you know
235. 9:51farar it out the truth and so there
236. 9:53really isn't a a great degree of
237. 9:56skepticism uh in a lot of her work know
238. 9:59I've read a lot of her books Stranger
239. 10:00Beside Me was a good book uh about uh
240. 10:03Ted Bundy but um she doesn't really come
241. 10:07from the standpoint as investigative
242. 10:10reporters or investigators defense
243. 10:12investigators from the standpoint that
244. 10:14there could be problems with the
245. 10:16investigation or that there could be
246. 10:19alternate theories or there could be
247. 10:21areas to investigate that need to be
248. 10:24brought forward so that the person gets
249. 10:26a fair trial she's basically going to
250. 10:28take the word of the police without a
251. 10:29lot of question well I mean that's been
252. 10:32the history of her books and and and
253. 10:34many of the books have
254. 10:36included subjects and characters which
255. 10:40you know there isn't a lot of Doubt
256. 10:41there uh the person has made statements
257. 10:44or the person has been seen a number of
258. 10:46times like Ted Bundy in the midst of
259. 10:49doing his crime so um you know in a case
260. 10:53like dian's where there was at least
261. 10:55some
262. 10:56question uh it certainly added to to the
263. 10:59idea that the police had basically
264. 11:02figured it out and this was a done deal
265. 11:05right James you've explained to me that
266. 11:08there was quite an age Gap and there
267. 11:09were many siblings in your family so you
268. 11:11didn't necessarily have a super close
269. 11:14relationship with Diane but can you talk
270. 11:16about growing up with Diane a little bit
271. 11:17tell me you know what comes to mind when
272. 11:19I ask
273. 11:20that um what comes to mind when I think
274. 11:23about D is pigeons got homing pigeons
275. 11:27and Phoenix and and uh she liked horses
276. 11:31and animals
277. 11:33um didn't really interact a whole bunch
278. 11:36there was like six years in between us
279. 11:37five years six years in between us we
280. 11:39didn't interact a whole lot um but yeah
281. 11:44but she was certainly a victim of abuse
282. 11:45her first husband and she Mr Steve DS
283. 11:49had quite a combative turbulent
284. 11:50relationship yeah they sure did um I
285. 11:53just remember times there was a time we
286. 11:56were in Flagstaff we were living up
287. 11:57there and he like jumped up on top of
288. 12:00her and he was he heading her on the
289. 12:01sides Hing her on the sides and she was
290. 12:03like just cuddled up like that so he
291. 12:05wouldn't get on be able to her and then
292. 12:08he stopped and she got up and she
293. 12:09started beating on him how tall is
294. 12:12Diane I'm going she's probably about 57
295. 12:15okay 5 I really she's not exactly petite
296. 12:19then I mean she's pretty small person
297. 12:21though at least at that point right yeah
298. 12:23so you saw her recently um what kind of
299. 12:26a visit did you have I I I know of
300. 12:28course we've talked about this at Great
301. 12:29length but for the people watching this
302. 12:31he had a pretty good visit didn't had a
303. 12:33really good visit had a really good
304. 12:35visit talk to me about her intelligence
305. 12:37I I read what she writes and I I I get
306. 12:39the impression that this is this has to
307. 12:41be uh you know a cohesive intelligent
308. 12:44person writing this what yeah she's
309. 12:48um and there's absolutely nothing about
310. 12:50this case obviously that she doesn't
311. 12:52know or understand right um but she has
312. 12:55taken everything and she's just
313. 12:58incredibly
314. 12:59scary smart you know the way she pieces
315. 13:02puzzles together um yeah very smart
316. 13:07right and and an analytical mind with
317. 13:09math and codes and things like this too
318. 13:12right um some people would say she's
319. 13:15lost her mind but and other people would
320. 13:17say that she's actually found it right
321. 13:20um she's been locked up for how many
322. 13:24years 29 29 years she spent 5 years in
323. 13:27solitary confinement where she got to
324. 13:30see nobody it's hard to imagine 24 hours
325. 13:33a day um I worked on another case in the
326. 13:36past uh the case of Captain Jeffrey
327. 13:38McDonald the Green Beret doctor
328. 13:41convicted of killing his family he was
329. 13:42also injured in the in the uh event that
330. 13:45led to his family's death um that injury
331. 13:49of his was greatly minimized but you
332. 13:51really opened my eyes when you explain
333. 13:53to me how badly Diane was shot that
334. 13:55night can you talk about that this
335. 13:56wasn't a a flesh F the bo actually
336. 13:58struck the bone yeah the bullet struck
337. 14:00the bone I just I never really paid
338. 14:03attention to it you know because it's
339. 14:05you know it's a it's just a got shot in
340. 14:07the arm but she's got a scar that's like
341. 14:10four or five in Long than going up her
342. 14:12arm where it actually took the bone and
343. 14:13it shattered the bone in half and I
344. 14:15guess the the arm was actually laying up
345. 14:17where its fingers were pointing towards
346. 14:19her bicep the night of the shooting wow
347. 14:22um but when this the problem is that how
348. 14:25it got to the hospital you know let's
349. 14:28talk about how what got to the hospital
350. 14:30it got to the hospital and it was
351. 14:32wrapped up straighten up wrapped up in a
352. 14:35towel that was like I'm going to use you
353. 14:39know an rues movie you know perfectly
354. 14:41folded you know it's like I'm just going
355. 14:44to tell you the truth the more I hear
356. 14:46this the more I think honestly that that
357. 14:48was a very very lame thing for the
358. 14:50prosecution to put so much into because
359. 14:53who really witnessed that EXT exquisitly
360. 14:56well-folded towel I mean it it seems
361. 14:58like
362. 14:59right a distraction you know I mean Eric
363. 15:02what was your thought on the towel um
364. 15:05you know I there were so many things
365. 15:06about the trial um that as you listen to
366. 15:11them you you got the impression that it
367. 15:14was uh a case that was certainly very
368. 15:19circumstantial um but that cumulatively
369. 15:23you know it was hard not to think that
370. 15:25the way it was put on that Diane was
371. 15:27completely guilty it really was um some
372. 15:30of the small details I think kind of
373. 15:33went over the jury's head I mean the the
374. 15:35the for example the towel I don't think
375. 15:38it really registered with a lot of the
376. 15:40jury from what you know all of us Deport
377. 15:43Watchers could tell so um there were
378. 15:47there was there was that there was the
379. 15:49fact that there were the letters to uh
380. 15:52the gentleman in Arizona I mean there
381. 15:54was there was that took the The
382. 15:56Sensational aspects about Diane's life
383. 15:59about her um you know sex sexual
384. 16:03escapades that certainly were a lot
385. 16:07bigger than you know the towel and a lot
386. 16:09of the other minor things that certainly
387. 16:11came up that just became kind of a
388. 16:13sideshow you know I mean it really was
389. 16:16it became kind of in the end especially
390. 16:18with the the pregnancy and the birth a
391. 16:21circus type atmosphere certainly and
392. 16:25actually um she was actually a surrogate
393. 16:27parent for people that that couldn't
394. 16:29have babies um people nowadays when they
395. 16:32get paid and they do this um they're
396. 16:34almost revered on TV that you know that
397. 16:37they had enough heart that they would
398. 16:40carry a baby for a family for a family
399. 16:42that couldn't have a baby and people say
400. 16:45that she was a surrogate parent that she
401. 16:47did that and it's like and she's just
402. 16:48this wicked wor who could give away a
403. 16:51baby you know but it's like it's it's
404. 16:54the way things are portrayed man right I
405. 16:56know and and convicted through the Press
406. 16:59it's a really I mean that movie and I've
407. 17:00never watched the movie I and we talked
408. 17:02about this I mean I don't want to I will
409. 17:04at some point watch it you know but I
410. 17:07don't want to be impacted by it I mean
411. 17:08phah faucet what a major actress to cast
412. 17:12in that part it doesn't get in it at the
413. 17:14time did it get any could it have been
414. 17:15any no no they really vested a lot into
415. 17:18that didn't they everybody loved their
416. 17:19pharaoh and en Ru with the the Duran
417. 17:22Duran song what that did that play a big
418. 17:25part I mean the fact was that really the
419. 17:26trial Hungry Like the Wolf yeah that was
420. 17:29at the trial was that I can you tell the
421. 17:32demeanor of the courtroom well I mean
422. 17:34there was just this moment when they
423. 17:36played the music and that she seemed to
424. 17:40be connecting to the music and you know
425. 17:43the beat and everything that certainly
426. 17:46an an rule I know how she made made it
427. 17:50made it a very very big deal um yeah and
428. 17:55and and so um these little items that
429. 17:58just seemed to be not evidentiary but
430. 18:02were indicative of what the prosecution
431. 18:05says was a woman who did not care you
432. 18:09know care about her children enough that
433. 18:12this music would have if she said it was
434. 18:15playing this music would have triggered
435. 18:18you know an awful response from the
436. 18:20average person it definitely wouldn't
437. 18:22make their foot yes exactly and so as a
438. 18:25result these are just things that seem
439. 18:27to add wait to what the prosecution was
440. 18:30saying at the time so and and really
441. 18:32there could be a disconnect she could be
442. 18:34just exhibiting inappropriate behavior
443. 18:37way really weird part to that whole
444. 18:39statement because that is the weirdest
445. 18:41freaking thing I've ever heard but I I
446. 18:44don't mean to come back to the very
447. 18:46beginning though um but I will probably
448. 18:48about a 100 times um she never held a
449. 18:51gun never fired a gun was not near a gun
450. 18:54when it was being fired had no blood
451. 18:55spatter and gunpowder as du off her so
452. 18:58how how did she shoot somebody to have a
453. 19:01reaction to a tape she shouldn't be the
454. 19:03one on trial here and why would a person
455. 19:06aiming to murder her children drive them
456. 19:08to the hospital and at the end of the
457. 19:10day that's a very very hard one to go
458. 19:12around what's it going to take what
459. 19:14would it theoretically take to get I
460. 19:17mean her appeals are done everything's
461. 19:19you know the course has been run but
462. 19:21this is what you're doing right now what
463. 19:23what would it take to get Diane out of
464. 19:25prison can you can you feature it I mean
465. 19:27and what's your thought and I don't mean
466. 19:28to go on but what's your thought on the
467. 19:29fact that she could admit she could say
468. 19:31I did this and be paroled by now but she
469. 19:34holds on to her innocence how does that
470. 19:36move you well I mean these are some of
471. 19:38the things I've read over the years that
472. 19:39have made me always kind of Wonder and
473. 19:41the private investigator who worked on
474. 19:44her postconviction relief now this goes
475. 19:46back um 10 years now at least with
476. 19:50Richard con is is is the question of the
477. 19:54numbers of things missed opportunities
478. 19:57by the defense to bring alternate
479. 20:00theories um and so really all of these
480. 20:03appeals and postc conviction relief have
481. 20:05all run and so really you're down to
482. 20:08things like pardons you're down to
483. 20:11things like new evidence that comes
484. 20:13forward that you you can you know get it
485. 20:15in front of a judge and it's substantial
486. 20:17enough maybe they may have hold a
487. 20:20hearing uh about it but uh really um you
488. 20:25would probably need some kind of
489. 20:27confession from some who came forward
490. 20:29and said you know I am the killer right
491. 20:32you know that that was there that night
492. 20:34and there is a man I don't even think
493. 20:36that would do yeah well you don't think
494. 20:38so but there is a man who has been
495. 20:40identified repeatedly this man was part
496. 20:43of a apparently part of a motorcycle
497. 20:45club that had illegal activity going on
498. 20:47Pat Horton the prosecutor was ultimately
499. 20:50the person who left his role as a
500. 20:53prosecutor and became the attorney for
501. 20:55the same motorcycle club he had been
502. 20:57investigating and that is all Central to
503. 21:00this well I remember um Pat Horton the
504. 21:03district attorney there were several
505. 21:05articles written about uh one of them in
506. 21:07the Oregon magazine By Dana Tims about
507. 21:11the kind of
508. 21:13loose uh uh sort of um what I would call
509. 21:18Rogue operation that some of
510. 21:22the officers that were in an inter
511. 21:25agency narcotics team at the time the
512. 21:28very loose um fast and loose things that
513. 21:31were going on with that particular group
514. 21:33and I think that certainly that was
515. 21:37documented it and they had interviews
516. 21:39with people it's also been
517. 21:41investigated and I think that article
518. 21:43was just one of the many things that
519. 21:45came out about that period of time down
520. 21:48in Springfield and in Lane County that
521. 21:51would lead you to believe that perhaps
522. 21:54evidence handling
523. 21:56wasn't what it could have been and that
524. 21:59there are certainly questions left over
525. 22:00from that era yeah you can actually look
526. 22:02up on the Salem News not Salem News but
527. 22:05the Eugene Register Guard in their
528. 22:07archives about the lane card Lan County
529. 22:09Narcotics task force as being
530. 22:11investigated by Thomas coffin who is a
531. 22:14federal investigator Who was appointed
532. 22:16to investigate them more specifically he
533. 22:19was appointed to investigate Pat
534. 22:22Horton um and I'm not sure what the the
535. 22:25total end of it was I
536. 22:28I think people just moved around and
537. 22:30yeah he actually got a conviction well
538. 22:33he actually got a a hung jury the first
539. 22:36time around and then he got a sealed
540. 22:38conviction where he don't really know
541. 22:40what the conviction is one of those so
542. 22:43well I want to thank both of you so much
543. 22:45because this is really a very important
544. 22:47subject anyone serving time for a crime
545. 22:49they didn't commit regardless of the
546. 22:50circumstances is totally unacceptable
547. 22:52and we have a new attorney general in
548. 22:53Oregon now who seems more open-minded
549. 22:56and we have you Eric doing this role um
550. 22:58for other people so it gives me hope
551. 23:01that if there is more to this that it
552. 23:02can be uh uncovered and maybe there is
553. 23:05hope still for Diane to not spend the
554. 23:07rest of her life in prison she'd like to
555. 23:09see her father before this thing's over
556. 23:10yeah that's for
557. 23:12sure that's for sure and it's really you
558. 23:15know I didn't get to 100 tons but she
559. 23:17never held the gun
560. 23:19man how could you shoot somebody it is a
561. 23:21tough piece of it's a tough point to
562. 23:24work from you know because it's hard to
563. 23:25believe their case be based on that
564. 23:30okay