The Trial

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A podcast! Listen to Locatora Radio Season 10 on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. When the trial was finally ready to convene in, I think it was May of 1984, so it had been just about a year since the incident on Old Mohawk Road, the press was given the first row.
So if you're a reporter, you've got a guaranteed seat. But you still had to get there fast because only about eight or nine people could, you know, squeeze in there.
And you did have some national media representation. You had courtroom artists who would take up a little bit more of their room, but the rest of those seats were jammed from a line that would form every day of 100, 115 people hoping to get into the 80 or 84 seats that were available.
It was the place to be. Reporter Dana Timms was there from the beginning of Diane's story and remembers vividly how she played to the press.
By the time trial came around, she was looking healthier. She was looking much more pregnant.
She dressed in a different outfit every day. It was kind of funny because she had a red wristband that she wore signifying to jail deputies that she was a prisoner of significant danger, perhaps.
And there was more than a few times when she would kind of make that bracelet, the kind of thing they might slap on you at a hospital for identification. Part of her outfit, she would kind of have a red matching dress to go with her matching bracelet.
I thought, accessorize, you know, she's got it going on. When Diane's trial began in 1984, not only was she pregnant, but she carried herself with the air of someone who knew that they were the center of attention and reveled in it.
Eric Mason recalls what it was like to see Diane enter the courtroom. So, literally, Anne and myself and other reporters are just a few feet away from where they bring Diane in from the Sally port with chains around her wrists and ankles.
And it's almost like for Diane, this is a show. This is almost like, wow, this is the circus and I am the main performer.
Not, oh my God, my children are shot and now I'm being accused, which is awful. But it's almost like I am the cool rock star mom who is now on trial.
And if I could come into some better music and sort of move to the music, I'd do it.

It was odd.

It was strange to see that.

And so before the jury gets there, all the chains are taken off so that they never see that.

But when she gets off that van, it's almost like somebody backstage at a rock concert ready to go out on stage.

It's almost like I'm a performer and I'm here, which is type A narcissist behavior. It was just unreal.
There was this feeling kind of like I'm going to shake my hips. I'm going to move my body in a way that's sexual.
I am going to sort of like nod my head and I'm going to move past these reporters almost as if I am the center of attention, but I'm enjoying it. I like what's going on.
And almost as if I'm probably going to walk out of this because no one's going to believe I shot my kids. But also there was this feeling almost like there was satisfaction in it.
And so that's what I think the jury felt that vibe from her, that it was a moment not like, poor me. It's more of a moment like, I am going to give you a show and I'm going to carry this off like it's a performance.
That's odd. Diane's odd behavior began the night of the shooting and continued throughout the reenactment and into her press appearances leading up to the trial.
Prosecutor Fred Hughey leaned into this when presenting his case to the jury. Well, you certainly had the prosecution going first.
So Fred Hughey putting on first on the doctors and nurses from Mackenzie Willamette Hospital that had treated her that night. So I'm sure he was a very methodical guy and wants to kind of lay out, here's what happened.
The very first night anyone knew about this, here's what's going on. And along the way, then people would be talking about,

and this was certainly a theme during the trial in terms of Diane's odd reactions that other

people might not have reacted that way. She had never been shot through her left forearm

and had apparently been allowed. She went into the bathroom by herself and one of the nurses

heard water running. So if you're going to be looking for gunshot residue on hands,

Thank you. and had apparently been allowed.
She went into the bathroom by herself, and one of the nurses heard water running. So if you're going to be looking for gunshot residue on hands, I think that's an indication that not just that nobody was thinking about her at that point, but you have doctors and nurses on duty, not cops, who would have probably not let that happen.
Jim Jagger was Diane's defense attorney. Unlike Hugie, he had very little to go on.
He tried to betray Diane as an abused wife and accused police of not spending enough time searching for the shaggy-haired stranger Diane described. So Jim Jagger was kind of the typical defense attorney.
I remember him opening with this. We're going to show you a lot of family photos.
And these photos, you're going to be able to look at them and see, here's a mom who loves her kids. And here's a mom who would never, ever think of harming them.
And so we're going to talk about pictures first. And so there were quite a number of photo arrays.
And, you know, this is Diane at the Lake with the kids. And this is them at the McKenzie River.
And this is out at Heather Plourd's house, you know, or whatever was being shown at the time. And so I think Jim Jagger didn't have a lot of facts on his side.
You know, here he was with really horrible facts. So he was going to have to really pound home the shaggy-haired stranger and how many people that could fit.
And so reasonable doubt was everything. And pounding home reasonable doubt, the fact that the police really never made a search.
And he got the detectives to say, how often have you looked for this composite? What have you really done? Well, we really didn't think there was much to it, said the detectives. So he was really trying to build a case around the fact that here was somebody who'd been identified, and there was a sketch, and the police had really done very little to find this person, or even find anybody, even from the ranks of the homeless in downtown Eugene, or going out to Mohawk store and saying, hey, does this look like somebody that's been out here? And so I think he did a

fairly good job of really trying to raise reasonable doubt, but he really didn't have a

lot to work with. But he was kind of dashing, nice looking, the guy with the nice briefcase, and that he had obviously spent time in a courtroom in front of a jury and telling a really good narrative about a woman who was headed out to her friend's house that night, and he painted really good pictures.
And so he knew how to spin a tale. The problem was that it was the mountain of circumstantial evidence that was up against Diane.
It was tough to deal with. So was part of the narrative that he spun was that Diane was an abused woman? Do you remember any of that in the courtroom? I think there was some of that.
And I remember Fred Hugie objecting to relevance on some of it because it just was so far afield of what it was that was being talked about. And you know what? I can't remember how much of that made it in.
I know and I think I remember parts of the story being off of proof and then I'm not sure how much of it made it in front of the jury because of the relevance question of how close it came to whether or not it was a fact of the case or not.

In the reenactment and subsequently when describing the events of the shooting,

Diane made a point to mention a song that was playing on the radio.

For many people, this would be triggering, a reminder of a traumatic event,

particularly the death and attempted murder of one's children, but not Diane.

Another key moment of this trial, and maybe the most haunting, that Diane claimed that the album she was playing the night of the shooting, at least the song that was on by Duran Duran, going back to the mid-80s there, was a Hungry Like the Wolf, thumping, pulsating, kind of post-disco era song, and the singer is saying, I'm on the hunt, I'm after you. Well, Diana's claiming that song is playing during the shooting of her kids.
So Fred Hugie brings in a music player and plays that song. And it doesn't take more than a few beats before people realize Diane is tapping her toe and bobbing her head in time with the music and mouthing the words.
And maybe for the first time, Fred Hugie in the courtroom, the entire courtroom is packed, the song is blaring. And Diane alone is up there mouthing the words and bopping along to this thing.
And Huckey, who hadn't really spent much time looking at Diane, just couldn't help himself. Nobody could.
And we all just stared, aghast and horrified. She didn't really have the benefit of the doubt, even though you do in the American justice system of innocence, it felt like there was something else here.
But looking at that, and for my skeptical self, I think a lot of other people, if I had any doubt, I mean, not that you could convict on that, but my goodness. So a natural connection of someone who remembers Hungry Like a Wolf by Duran Duran as a background to this horrible shooting that she's somehow moving to the beat of this music and that to her is just another rock and roll song.
I think the jury is watching that really closely. That's like the most cognitive dissonance you could have, that someone would be remembering this moment where her children are being shot by somebody and that she's somehow moving to the beat like she's dancing to it.
You're saying this music, this song, Hungry the Wolf was playing the night or the moment of or was in the background of when the shooter shot. Correct.
The children. Because that's on the radio.
And that's what she says is on the radio. And so for them to be playing that in the courtroom and for her to have that reaction certainly is not the usual reaction of somebody who's gone through this horrible traumatic thing.
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Aside from Diane's strange behavior, a critical piece of testimony came from the forensic scientist Jim Pex. Most of the credit is given to Christie's testimony, but the blood evidence and forensics poked holes in Diane's story.
His blood spatter analysis, a technique that is today considered somewhat controversial, proved to be critical in the prosecution's case. It was home late in the evening, and as we went forward to respond to the standard call-out, I was told that there was a shooting that involved children and that there was a vehicle to be processed.
And so that's where the scene begins, is in the processing the vehicle. After the initial processing that night, I went back in the daytime because sometimes it's always easier to see these things.
On the passenger side rock panel below the door, there was a number of very small blood droplets, which is unusual. I've been told preliminarily that Ms.
Downs had stopped for some stranger along the roadside, that there had been an altercation, that he stood in the driver's door and shot the children. The blood spatter on the rocker panel was documented.
We had it removed to preserve it. But at that time, it's evidence.
But you don't know how this fits into the overall scheme of things at that time. Don't know.
But it's something we will pursue and look further. The defense leaned on the idea of the shaggy-haired stranger relying heavily on Diane's recounting of the events for their narrative.

But the facts Jim presented made it difficult for Diane's story to hold together under scrutiny. As we researched it and eliminated other possibilities, we come down to the observation and viewpoint that someone was shot outside the vehicle.
She also said that the perpetrator, the bushy-haired stranger,

was standing outside the driver's door when all the shots were fired. And based upon what we see on the rocker panel, that's not a possibility.
The choice that we felt most comfortable with was a person who fired the shot to have reached in clear across the driver's seat, the passenger seat, and reached out the driver's door. Because that spatter pattern has to come back towards the weapon.
And if a person went around the vehicle and stood on the other side, then that spatter pattern would have been in the other direction. So the shooter would be sitting in the driver's seat, shoot the passenger, and then that passenger would be, the victim would be opening up their door and falling out of the of the car

that's the theory yes that's there's there is no physical evidence that that specifically states the movements of cheryl who was in the front seat you have the bullet that was fired that i found under the carpet in the vehicle and so it one of her injuries uh was an entrance exit that would align with with where that bullet struck so that was probably the first shot uh at some someone somehow the door was opened and she was outside when the second shot was fired and the second shot would have been fired from inside the vehicle or outside of the vehicle did the best match to the bloodstained pattern would be someone would have to reach clear across the passenger seat and shoot.

Down. While she's on the ground.

Okay.

That paints a very different story than what happened with Diane's shared.

Yes.

What I found was that the markings that were on the cartridges that came from the rifle

were a match to the ones that were found in the vehicle, the casings that were left behind. And which meant that the cartridges that were in the rifle at one time had been worked through the mechanism of the same weapon that discharged those casings in the vehicle.
And that rifle was not, you couldn't find that rifle? Rifle wasn't it. It came from another weapon, but there was a relationship between those cartridges and the casings from the scenes.
Proponents of Diane's innocence often bring up the lack of gunshot residue on her hands. The claim has been made that she washed her hands before analysis, but according to Jim, neither would have mattered because the composition of the primer in .22 caliber ammunition at the time would not have contained barium and antimony, which would have made the GSR test inconclusive.
GSR is a three-letter word that encompasses a lot of different aspects of a shooting scenario.

But in the analyses of the person's hands, which are looking forward to see if they fired a weapon or not,

there is no barium and anemone in .22 ammunition.

Jim went as far as to have part of the car reconstructed for the courtroom demonstration. He presented evidence in a way that was not only novel, but clear and direct, ensuring that the jurors understood.
One of the detectives coming to work one morning went by a shop and there was a guy in there who was making store window displays and was doing a pretty nice job. And he says, well, could you build an inside of a vehicle? And the guy said, well, sure, no problem.
And he did. He built that mock-up.
And it was even on a stand where I could turn it towards the jury so they could see what I saw. And within that styrofoam mock-up, I was able to circle and indicate areas where blood was found, where the cartridge casings were found.
And then we had the dolls that we placed in it as well and do basically a scene recreation using that mock-up. And when you were in the trial room displaying and explaining the vehicle, did you have a chance to look at the jurors and see their facial expressions? Were they interested in what you were revealing to them? That's our job.
Communicating with the jury is everything. And if you're, you know, halfway decent at what you do, that's where you're going to spend your time.
I had PowerPoint presentations. We had the vehicle mock-up.
We had the dolls. And then another thing that I did that I don't know that had ever been done before is I used overhead transparencies.
transparencies. Back in the old days, you put it on a machine and it broadcast up on a screen, these transparencies.
And so I had a number of them. And what I did is I made a notebook with all of these transparencies in the notebook.
And we gave a copy of those to each juror, the judge, and the attorneys in the courtroom. So as I put up a transparency and talked about it, they could write right on that notebook, you know, whatever thoughts or ideas they had.
And that was kind of a new and novel way of presenting scientific evidence at the time.

Jim's evidence essentially destroyed Diane's version of the events of that night. At this point, the prosecution's case was more or less sealed,

with only circumstantial evidence on the defense's side.

And then came Christy.

She had recovered from her stroke well enough to provide testimony at the trial. Dana Timms recalls Christy's testimony.
Diane made a real point early on, saying how much smarter she was than the cops for sure. She talked about her intelligence, and so I'll grant her that.
But I think we can infer that her then nine-year-old daughter was a pretty smart girl also. And she could remember, and I think she remembered from the start, that she couldn't necessarily speak that or have the emotional strength to certainly express that to a big group of people in a courtroom.
But she got to the point she could. But then we had finally,

near the end of the prosecution's case, we knew Christy was going to testify, didn't know exactly which day, but here's that day. A little kid comes into the courtroom and all eyes kind of swing toward her.
Diane didn't look at her, takes a stand. This little girl whose head barely pokes above the witness box.

She has a bit of a lisp,

probably from the... didn't look at her, takes a stand.
This little girl whose head barely pokes above the witness

box. She has a bit of a lisp, probably from the stroke.
She's been getting speech therapy to be able to just increase her mobility and speak better. And Fred Hughey, the prosecutor, just sort of had to establish,

Christy, you know right from wrong, don't you?

And... Fred Hughey, the prosecutor, just sort of had to establish, Christy, you know right from wrong, don't you?

And he was just kind of establishing a baseline for her testimony.

But then kind of walks her through it, and it was just given all that we had known about that, and here's this little girl, and now she's on the stand with her mom 12 feet away, staring intently at her. Not glaring, but almost as if I could put a thought into your head, little girl, I would have you say this.
But Fred asks, do you know who shot you? And she said, my mom. And what was the reaction of the courtroom? Oh, it was just a gasp.
I mean, it was the nail. At that point, in my mind, it was done.
I never had a doubt after that point that the outcome of that trial would go any other way than it did. Did you look at the jurors? Yeah, they were transfixed.
Well, I think maybe some were, because Christy was crying off and on during that time. She was asked, do you need a break? And she's indicated, no, she could go on.
So I think I'm recalling that nine of the 12 jurors were women, and there was a bit of a gender breakdown, but I think a lot of them were pretty teary because it was just a tough moment. Here's this little girl recounting the worst thing in her or anybody else's experience in that courtroom.
And yet she was still keeping it together and speaking on behalf of her dead sister and her wounded brother. It was very, very powerful.
And then came the deliberation and Diane's sentencing. It had been a six-week trial, so quite a lot of time as well.
The defense case put a couple guys on who talked about, I saw somebody else in that vicinity that night, but these guys, there were two of them. They just seemed to have no credibility, didn't seem believable.
So at the end of a six-week trial, it'd be pretty rare to have a 10-minute deliberation before a conviction. So it was three full days.
In fact, this went on into the weekend. And so it was early Sunday morning when we were told that there's a verdict.
And so, you know, it's getting close to one in the morning and people are convening back in court and getting ready to hear what it is. What did you feel the verdict would be? Did you have your own intuition about that? Yeah, I had my feeling.
I thought it was going to be guilty. In the course of most murder trials, I think that prosecutors are sort of loath to bring a case they don't think that they can win.
So my feeling was, I think we're going to get a conviction here. And my sense was that people sort of felt the same way.
But when they did read out the verdict, I think there was one murder charge, two aggravated assaults, and two attempted murder for the other kids who survived. Found guilty on all five.
And Judge Foote sentenced her that night to 50 years in prison with a minimum of 30 to be served.

And he said something,

and this was later,

he just indicated,

I don't think you should ever be in society again, and I've done my best to make sure that that's the case. Here's the deal.
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And so Diane was put in jail. And then the fate of the two living down siblings was decided.
The prosecutor, Fred Hughey, officially adopted Danny and Christy. Well, to start with, Fred Hughey looks like the sad-eyed basset hound dog who hates to have to tell you this story.
He hates to have to tell you that this mom shot her kids. And so he kind of looks like a bloodhound almost.
He never smiles. He's always serious.
And it's almost painful for him as the various witnesses come up to get the details. So obviously, this man who is very protective of these kids is thinking to himself, these kids are so traumatized by this.
I hate to have to bring you this jury, but here's the girl in the car and she's going to tell you what she saw.

And so I think as he's asking her the questions and ending up with who did this shooting,

it's almost like apologetic in a way that he's going to have to lay this out for you

because the thought of it is so terrible, and I'm going to have to bring it to you,

and I'm the bearer of bad news.

but here's what he said. that he's going to have to lay this out for you because the thought of it is so terrible.
And I'm going to have to bring it to you. And I'm the bearer of bad news.
But here it is. And the mom is responsible for this girl being shot.
So when it comes out that he's going to adopt these kids, it was not a shock to a lot of the people who surrounded the case because it almost seemed to pain him to the point of that he was feeling that you almost felt as though these kids were his kids. I think because he'd spent so much time around them and he'd spent so much time pulling these awful details out that he felt that responsible and that protective of them.
That here he was with these very vulnerable kids just a few feet away from the trigger person, the shooter. She's right there.
She's just feet away. And then she's getting more pregnant, of course, as time goes on, which is even a crazier little angle to the whole thing.
And here she is ready to, you know, give birth to yet another child. Fred Hoogie clearly felt a responsibility and connection to the children, something that he never openly discussed to any extent.
I was riding my bike along the Willamette River on the bike paths. And this was not long after the word of the adoption of the Hugies had been public.
I see this guy running, and I can tell it's Fred. He's in his army boots, he's out for a run.
So I just kind of glided up beside him. I said, I think I called him Mr.
Hugie not Fred and he's running and he doesn't look at me he just says yeah

I said hey Dana Timms with Argonian

and I didn't have a very comfortable relationship

with a lot of Eugene Copps

because of some of the stories that I wrote

but I never sensed any animosity

and he just kind of yeah

and I just said

I think it's pretty amazing that you adopted those kids

and he said thanks

and I peddled on

Thank you. yeah.
And I just said, I think it's pretty amazing that you adopted those kids. And he said, thanks.
And I peddled on. In the meantime, Diane, pregnant and convicted, went into labor shortly after the verdict.
About 10 days after that night, Diane is driven to Sacred Heart Hospital in Eugene by Doug Welch and another deputy who had tended to Diane during the trial. And basically they induced labor and she delivered the child she had been so pregnant with that trial.
And she was able to hold her baby for four or five hours. Doug Welch said Diane even let him hold the baby, which since Diane had kind of sparred with him throughout, he thought it was the nicest thing she had shown toward him anyway.
And from there, you know, she was on her way to the women's state prison in Salem for intake and processing. And so those two eventually, you know, not too long after that, drove her up and dropped her off in Salem.
And even then, people figured, oh, well, that's the end of that then. What did she deliver? A baby girl or a baby? She had a baby girl.
On the next episode of Happy Face Presents Two-Face, we check back in with DNA detective Michelle with the first round of results,

tracing Becky's maternal lineage in order to determine once and for all

that the baby girl Diane gave birth to that day was in fact Becky Babcock.

Ben Bolin is our executive producer.

Melissa Moore is our co-executive producer.

Maya Cole is our primary producer.

Paul Deccant is our supervising producer.

Sam Teagarden is our researcher.

And Matt Riddle is our story editor.

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