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Q. "Do you remember it would be about the next day, December 13th, that you came by on your own to suggest some intimacy and getting back together again" ?.
Q. "Do you remember the very next day, December 15th, you taking the position that there wouldn't be any more intimacy, that it was off and I/we're not going to be involved any more" ?
A. "It was uphill, downhill, off and on".
Q. "A lot on your side. You say, I/we've got to break it off, and the next day 'you' come by and try to initiate it" ? (emphasis added).
A. "Yes, sir". I don't recall dates, but, yes, sir, it was on and off, on and off ".
him and that somehow he was the hapless victim in the relationship. The truth of the matter was much different. He was leaving his wife's bed at 5:00 a.m. every other morning to go to Diane's apartment, half the time to terminate the relationship with Diane, half the time to resurrect it, on his whim because there was just something about Diane that made it impossible for him to leave her alone (App 8, p.p.1466-68). He claims Diane was always pushing him, but then admits HE made these decisions. Diane never offered ultimatums or threatened to leave. She was laying asleep in her bed when HE would wake her up to say HE had decided one way or the other. No one was pressuring him for anything. When asked by Defense Attorney Jagger (App 81, p.p.1519-20)
Q. "What was the reason Diane Downs gave for leaving Arizona and going to Oregon" ?
A. "So that 'I' could make some decision as to what I wanted to do as far as leaving my wife, coming to Oregon, marrying Diane, whatever", (App 81, p.p.1519-20), (emphasis added).
her would tax her sorely. So she kept a 'journal' tailored specially to soothe Nick's ego when he appeared at her front door. She didn't mail these words to him, because she did not want to encourage him to join her in Oregon. It was he who had the unbalanced obsession with Diane - not the other way around. In the absence of a motive for murder, the State needed to say Diane was so in love with him that she'd shoot her own children to win his affection. In order for that twisted logic to work, Nick would have to dislike children or feel that Diane's children were an obstacle to their relationship. But as Nick himself testified, neither was the case :
Q. "Your relationship with her was a sometimes on-again and off-again relationship, wasn't it" ?
to do, isn't that correct" ?
A. "Yes, sir".
right, huh" ?
children, don't you" ?
A: "Yes, sir, I do".
relations, isn't that correct" ?
A. "Yes".
those times, wasn't it" ?
responsibility, isn't that correct" ?
the children, isn't that true" ?
simply because you loved Charlene better, isn't that true" ?
Q. "And during that occasion did you not indicate to her that it was because of the children? You indicated it was because you happened to love Charlene more than you loved her".
move to Oregon.
Q. "You didn't want to move to Oregon. You would go further and indicate you had a good job there. You didn't want to lift up your
roots and to go to a different place and have different job responsibilities
too?.
the one who had put that
distance between them....not Nick. How can you be 'obsessed' with someone
when you distance
yourself from them as far as it is possible?. It's total
nonsense. In fact it displays the opposite. Diane asked for the
transfer
that would move her out of State, 'away' from
Nick. She took a
second transfer three weeks before she and her children were
attacked in order
to put her in a better position to become a Postmaster, (App 91, p. 412).
She was shopping for a new home,
(App.72, p. 683, lines 1-4). She was not
dwelling on Nick. Diane took a new partner and was meeting new
friends. She was
taking her children to the coast and re-establishing her business...not
Nick. Diane had a full
productive life...not Nick. But
the State refuses to see that, just as it
refuses to admit Diane fought with a real gunman to save her children. The State
engaged Nick to tape-record all his telephone conversations with Diane in
the belief that she would incriminate herself.
They even fitted a tracking device to her car. Both revealed
nothing. Because there was nothing to reveal.
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