The Trial

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Speaker 21 When the trial was finally ready to convene

Speaker 21 in

Speaker 21 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 was given the first row.

Speaker 21 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

Speaker 21 squeeze in there. And you did have

Speaker 21 some national media representation. You had courtroom artists who would take up a little bit more of their room.

Speaker 21 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, you know, it was the place to be.

Speaker 22 Reporter Dana Timms was there from the beginning of Diane's story and remembers vividly how she played to the press.

Speaker 21 By the time trial came around, she was looking healthier.

Speaker 21 She was much more pregnant. She dressed in a different outfit every day.

Speaker 21 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

Speaker 21 danger, perhaps. And there were 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.

Speaker 21 Part of her outfit, she would kind of have a red matching dress to go with her matching bracelet. I thought, accessorize, she's got it going on.

Speaker 22 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.

Speaker 22 Eric Mason recalls what it was like to see Diane enter the courtroom.

Speaker 23 So,

Speaker 23 literally, Anne and myself, and other reporters, are just a few feet away from where they bring Diane in from the Sally port

Speaker 23 with chains around her

Speaker 23 wrists and ankles.

Speaker 23 And it's almost like

Speaker 23 for Diane, this is a show.

Speaker 23 This is almost like, wow, this is the circus and I am the main performer.

Speaker 23 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.

Speaker 23 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.

Speaker 23 And so before the jury gets there, all the chains are taken off so that they never see that.

Speaker 23 But when she gets off that van, it's almost like somebody backstage at a rock concert ready to go out on stage.

Speaker 23 It's almost like, I'm a performer and I'm here, you know, which is type A narcissist behavior. It was just unreal.
There was this feeling kind of like, I'm going to shake my hips.

Speaker 23 I'm going to move my body in a way that's sexual.

Speaker 23 I am going to

Speaker 23 sort of like nod my head and I'm going to move past these reporters almost as if

Speaker 23 I am the center of attention, but I'm enjoying it.

Speaker 23 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.

Speaker 23 But also there was this feeling almost like there was satisfaction in it. And so that's what I think the jury felt that

Speaker 23 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

Speaker 23 I'm going to carry this off like it's a performance. That's odd.

Speaker 22 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.

Speaker 22 Prosecutor Fred Hugie leaned into this when presenting his case to the jury.

Speaker 21 Well, you certainly had the prosecution going first. So Fred Hugie

Speaker 21 putting on first 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,

Speaker 21 here's what happened the very first night anyone knew about this.

Speaker 21 Here's what's going on.

Speaker 21 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

Speaker 21 been shot through her left forearm

Speaker 21 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,

Speaker 21 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.

Speaker 22 Jim Jagger was Diane's defense attorney. Unlike Hugie, he had very little to go on.

Speaker 22 He tried to portray Diane as an abused wife and accused police of not spending enough time searching for the shaggy-haired stranger Diane described.

Speaker 23 So, Jim Jagger

Speaker 23 was

Speaker 23 kind of

Speaker 23 the

Speaker 23 typical defense attorney. I remember him opening with this.

Speaker 23 We're going to show you a lot of family photos.

Speaker 23 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.

Speaker 23 And so we're going to talk about pictures first.

Speaker 23 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 Mackenzie River.

Speaker 23 And this is out at Heather Plord's house, you know, you know, or whatever was being shown at the time. And so

Speaker 23 I think Jim Jagger didn't have

Speaker 23 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

Speaker 23 reasonable doubt was everything.

Speaker 23 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?

Speaker 23 Well, we really didn't think there was much to it, said the detectives.

Speaker 23 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,

Speaker 23 even from the ranks of the homeless in downtown Eugene, or going out to the Mohawk store and saying, hey, does this look like somebody that's been out here?

Speaker 23 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.

Speaker 23 But, you know, he was kind of, you know, dashing, nice looking, the guy with the nice briefcase, and that he had, you know, obviously spent time in a courtroom in front of a jury and telling a really good narrative

Speaker 23 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 tail.

Speaker 23 The problem was that it was the mountain of circumstantial evidence that was, you know, up against Diane. It was tough to deal with.

Speaker 22 So part of the narrative that he spun was that Diane was an abused woman.

Speaker 23 Do you remember any of that in the courtroom?

Speaker 23 I think there was some of that. And I remember Fred Huguie 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?

Speaker 23 I can't remember how much of that made it in.

Speaker 23 I know, and I think I remember parts of the story being offer 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.

Speaker 22 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.

Speaker 22 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.

Speaker 21 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.

Speaker 21 And the singer is saying, I'm on the hunt, I'm after you.

Speaker 21 Well, Diane is claiming that song is playing during the shooting of her kids.

Speaker 21 So Fred Hugie brings in a music player and plays that song.

Speaker 21 And

Speaker 21 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,

Speaker 21 Fred Hugi, 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.

Speaker 21 And Hugie, 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.

Speaker 21 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.

Speaker 21 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.

Speaker 23 So

Speaker 23 a natural connection of someone who remembers Hungry Like a Wolf by Duran Duran

Speaker 23 as a background to this horrible shooting, that she's somehow moving to the beat of this music and that to her it's just another rock and roll song. I think the jury is watching that really closely.

Speaker 23 That's like the most cognitive dissonance you could have that someone would

Speaker 23 be remembering this moment where her children are being shot by somebody and that she's somehow

Speaker 23 moving to the beat like she's dancing to it.

Speaker 22 You're saying this music, the song Hungry Like the Wolf was playing

Speaker 22 the night or the moment of or was in the background of when the shooter shot

Speaker 23 the children. Because that's on the radio and that's what she says is on the radio.

Speaker 23 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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Speaker 22 Aside from Diane's strange behavior, a critical piece of testimony came from the forensic scientist Jim Pecks.

Speaker 22 Most of the credit is given to Christie's testimony, but the blood evidence and forensics poked holes in Diane's story.

Speaker 22 His blood spatter analysis, a technique that is today considered somewhat controversial, proved to be critical in the prosecution's case.

Speaker 32 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.

Speaker 32 And so that's where the scene begins. It's in the processing the vehicle.

Speaker 32 After the initial processing that night, I went went back in the daytime because sometimes it's always easier to see these things.

Speaker 32 On the passenger side rock panel below the door, there was a number of very small blood droplets,

Speaker 32 which is unusual. I'd been told preliminarily that Ms.

Speaker 32 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.

Speaker 32 The blood spatter on the rocker panel was documented.

Speaker 32 We had it removed to preserve it. But at that time,

Speaker 32 it's evidence, but you don't, you 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.

Speaker 22 The defense leaned on the idea of the shaggy-haired stranger relying heavily on Diane's recounting of the events for their narrative.

Speaker 22 But the facts Jim presented made it difficult for Diane's story to hold together under scrutiny.

Speaker 32 As we research that and eliminate other possibilities, we come down to the observation and viewpoint that someone was shot outside the vehicle.

Speaker 32 She also said that the perpetrator, the bushy-haired stranger, was standing outside the driver's door when

Speaker 32 all the shots were fired. And based upon what we see on the rocker panel, that's not a possibility.

Speaker 32 The choice that

Speaker 32 we felt most comfortable with was

Speaker 32 the person who fired the shot to have reached in clear across

Speaker 32 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.

Speaker 33 And if a person went around the vehicle and stood on the other 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 her their door and falling out of the of the car

Speaker 32 that's the theory yes

Speaker 32 that's there's there is no physical evidence that that specifically states

Speaker 32 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.

Speaker 32 And so

Speaker 32 one of her injuries was an entrance exit that would align with where that bullet struck. So that was probably the first shot.

Speaker 32 Someone, somehow, the door was opened

Speaker 32 and she was outside when the second shot was fired.

Speaker 33 And the second shot would have been fired from inside the vehicle or outside of the vehicle?

Speaker 32 The best

Speaker 32 match to the bloodstain pattern would be someone would have to reach clear across the passenger seat and shoot

Speaker 32 while she's on the ground.

Speaker 32 Okay.

Speaker 33 That paints a very different story than what happened, what Diane shared.

Speaker 32 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,

Speaker 32 and which

Speaker 32 meant that the cartridges that were in the rifle at one time

Speaker 32 had been worked through the mechanism of the same weapon that discharged those casings in the vehicle.

Speaker 33 And that rifle was not, you couldn't find that rifle.

Speaker 32 The rifle wasn't it. There was another, it came from another weapon, but there was a relationship between those cartridges and the casings from the scenes.

Speaker 22 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.

Speaker 22 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.

Speaker 32 GSR is a

Speaker 32 three-letter word that encompasses a lot of different aspects of a shooting scenario. But

Speaker 32 in

Speaker 23 the

Speaker 32 analyses of a person's hands, which you're looking forward to see if they fired a weapon or not, there is no barium and antimony in.22 ammunition.

Speaker 22 Jim went as far as to have part of the car reconstructed for the courtroom demonstration.

Speaker 22 He presented evidence in a way that was not only novel, but clear and direct, ensuring that the jurors understood.

Speaker 32 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 a inside of a vehicle?

Speaker 32 And the guy said, well, sure, no problem. And he did.
He built that mock-up

Speaker 32 and it was even on a stand where I could turn it towards the jury so they could see what I saw.

Speaker 32 And within that styrofoam mock-up, I was able to circle and indicate areas where blood was found, where the cartridge casings were found.

Speaker 32 And then we had the dolls that we placed in it as well and do basically a scene recreation. using that mock-up.

Speaker 33 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?

Speaker 33 Were they interested in what you were revealing to them?

Speaker 32 That's our job.

Speaker 32 Communicating with the jury is everything.

Speaker 32 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 the dolls.

Speaker 32 And then another thing that I did that I don't know that had ever been done before is I used overhead transparencies. Back in the old days,

Speaker 32 you put it on a machine and it broadcasts 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.

Speaker 32 And we gave a copy of those to each juror, the judge, and the attorneys attorneys in the courtroom.

Speaker 32 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.

Speaker 32 And

Speaker 32 that was kind of a new and novel way of

Speaker 32 presenting scientific evidence at the time.

Speaker 22 Jim's evidence essentially destroyed Diane's version of the events of that night.

Speaker 22 At this point, the prosecution's case was more or less sealed, with only circumstantial evidence on the defense's side.

Speaker 22 And then came Christy. She had recovered from her stroke well enough to provide testimony at the trial.
Dana Timms recalls Christie's testimony.

Speaker 21 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

Speaker 21 her then nine-year-old daughter was a pretty smart girl, also.

Speaker 21 And

Speaker 21 she

Speaker 21 could remember, and I think she remembered from the start, but she couldn't necessarily speak that or have the emotional strength to certainly express that to a big group of people in a courtroom.

Speaker 21 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,

Speaker 21 but here's that day.

Speaker 21 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.

Speaker 21 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.

Speaker 21 And

Speaker 21 Fred Hugie, the prosecutor, just sort of had to establish,

Speaker 21 Christy, you know right from wrong, don't you?

Speaker 21 And he was just kind of establishing a baseline for her testimony, but then kind of walks her through it.

Speaker 21 And it was just given, 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,

Speaker 21 staring intently at her.

Speaker 21 Not glaring, but almost as if I could put a thought into your head, little girl, I would have you say this.

Speaker 21 But

Speaker 21 Fred asks, do you know who shot you?

Speaker 21 And she said, my mom.

Speaker 22 And what was the reaction of the courtroom?

Speaker 21 Oh, it was just a gasp. I mean,

Speaker 21 it was the nail.

Speaker 21 At that point,

Speaker 21 in my mind, it was done. I never had a doubt after that point.

Speaker 21 The outcome of that trial would go any other way than it did. Did you look at the jurors?

Speaker 21 Yeah, they were transfixed. Well, I think maybe some were, because Christie was crying often on during that time,

Speaker 21 she was asked, do you need a break? And she's indicated, no, she could go on.

Speaker 21 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.

Speaker 21 Here's this little girl recounting the the worst thing in her or anybody else's experience in that courtroom, and yet she was still keeping it together and you know speaking on behalf of her dead sister and her wounded brother it was very very powerful

Speaker 21 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

Speaker 21 I saw somebody else along that or in that vicinity that night, but these guys, there were two of them, they just seemed to have no credibility. Didn't seem believable.

Speaker 21 So at the end of a six-week trial,

Speaker 21 it'd be pretty rare to have, you know, 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

Speaker 21 we were told that there's a verdict.

Speaker 21 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.

Speaker 21 What did you feel the verdict would be?

Speaker 22 Did you have your own intuition about that?

Speaker 21 Yeah, I had my feeling. I thought it was going to be guilty.

Speaker 21 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.

Speaker 21 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.

Speaker 21 But when they did read out the verdicts, I think there was one murder charge, two aggravated assaults, and two attempted murder for the other kids who survived.

Speaker 21 Found guilty on all five.

Speaker 21 And Judge Foote sentenced her that night to 50 years

Speaker 21 in prison with a minimum of 30 to be served. And he said something, and this was later.

Speaker 21 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 that's the case.

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Speaker 23 No interest.

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Speaker 22 And so Diane was put in jail. And then the fate of the two living down siblings was decided.
The prosecutor Fred Hugie officially adopted Danny and Christie.

Speaker 23 Well, to start with, Fred Hugie

Speaker 23 looks like the sad-eyed basset hound

Speaker 23 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.

Speaker 23 And it's almost painful for him

Speaker 23 as the various witnesses come up to get the details. So

Speaker 23 obviously, this man who is very protective of these kids is thinking to himself, these kids are so traumatized by this.

Speaker 23 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.

Speaker 23 And so

Speaker 23 I think as he's asking her the questions

Speaker 23 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.

Speaker 23 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.

Speaker 23 It comes out that he's going to adopt these kids, it was not a shock to a lot of the

Speaker 23 people who were surrounded the case because

Speaker 23 it almost seemed to pain him to the point of

Speaker 23 that he was feeling that you almost felt as though these kids were his kids.

Speaker 23 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

Speaker 23 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.

Speaker 21 I was riding my bike along the Willamette River and the bike paths.

Speaker 21 And this was not long after the word of the adoption of the Hugies had been public.

Speaker 21 I see this guy running and he's, 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,

Speaker 21 I think I called him Mr. Hugie, not Fred.

Speaker 21 And he's just, he's running and he doesn't look at me. He just says, yeah.
I said, hey, Dana Tims with the Oregonian.

Speaker 21 And I didn't have a very comfortable relationship with a lot of Eugene cops 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

Speaker 21 I think it's pretty amazing that you adopted those kids

Speaker 21 and he said thanks

Speaker 21 and I pedaled on

Speaker 22 In the meantime, Diane, pregnant and convicted, went into labor shortly after the verdict.

Speaker 21 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.

Speaker 21 And basically they induced labor and she delivered the child she'd been so pregnant with that trial. And she was able to hold her baby for four or five hours.

Speaker 21 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.

Speaker 21 And from there, you know, she was on her way to the women's state prison in Salem for intake and processing.

Speaker 21 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.

Speaker 22 What does she deliver? A baby girl or a baby?

Speaker 21 She had a baby girl.

Speaker 22 On the next episode of Happy Face Presents To 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.

Speaker 22 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 T. Garnen is our researcher.

Speaker 22 and Matt Riddle is our story editor. Featured music by Dreamtent.
Happy Face Presents To Face is a production of iHeartRadio.

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Speaker 37 Hey guys, it's Aaron Andrews from Calm Down with Aaron and Carissa. So as a sideline reporter, game day is extra busy for me, but I know it can be busy for parents everywhere.

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You can't go wrong with the little crunchies.

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Speaker 1 This is an iHeart podcast.