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The State claimed Diane retrieved the gun from the trunk of her car, yet they failed to find her fingerprints on the trunk. Forensics said they were not 'asked' to lift fingerprints from the driver's door!. The very door Diane said the attacker had used. Prosecutor Hugi admitted that he 'conferred' with Defense Attorney Jagger and they 'agreed together' to suppress the fingerprint report from the court, the defendant and the Jury. For eight years the State denied the existence of fingerprints at the murder scene. When they were finally compelled to produce the report they had denied for so many years. No less than 'eight' unidentified adult finger and palm prints had been recorded. Amazingly Defense Attorney Jagger then admitted that he had held a copy of that report all along! (App 100, p. 424, line 5). Diane had been totally unaware of this. This suppressed evidence was proof of a stranger's presence that night. But more importantly it proves Diane did not get a gun from the trunk of her car as the State instructed Christie to say in court. Prosecutor Hugi testified that....
....." Both Mr. Jagger and Mr. Reid had access to the car prior to the time that it was washed. It was also my recollection that the car was tested for fingerprints; that the results were discussed with Mr. Jagger and WE concluded that they were not helpful to either side. That was a pre-trial discussion I had with Mr. Jagger. I received a fingerprint report. It was inconclusive. 'I talked with Mr. Jagger about that and that was it", (App 99, p. 372, lines 2-10), (emphasis added).
That means that Mr. Jagger either had the report in 1984 and failed to use it to defend his client or he didn't have it and lied in 1991 to cover for the State's withholding of exculpating evidence. The report reveals the existence of eight adult finger and palm prints at the murder scene that identifies someone other than Diane (App 22, p.1). Diane knows with certainty that police refused to lift prints from the driver's door. According to the report, not one print or void print was gathered from the driver's door. Yet numerous prints were there to be lifted. The following people had contact with the door either before or after the shooting:
Diane herself; Diane's children; Carolyn Palmer (the friend Diane visited that night); The male attacker Diane reported to the police, Christie sketched and Danny reported to his nurses, (App 48, p.p.17,19,23). The following people certainly left print's on the driver's door after it left Diane's custody; Dr. Mackey (who removed Danny through the driver's door at the hospital); Nurse Rosy Martin (who opened the passenger door); The nurse who removed Cheryl; Joseph Curtis (who moved the car from the hospital entrance); Detective's Tracy and Peckles (who entered the car to check it).
There were also, 'unidentified others'. A simple elimination process of these fingerprints could have revealed the attackers print's. How can so-called professionals deny any investigation such an opportunity in evidence gathering?.
The silence of the entire report with regard to prints, proves the State went out of its way 'not' to identify the man who attacked the Downs family. The car was washed of all prints, destroying the identity of the man Diane reported; the man Christie sketched, Diane described in her composite; the 'mean man' Danny reported to nurses as his attacker. At this juncture, this crucial evidence, which would have exonerated Diane, was intentionally destroyed by the police. Invoking the 'bad faith' clause prohibited by Arizona v. Youngblood, 428 U.S. 58 1988. Trial counsel should have moved the court to dismiss the charges against Diane and release her. He did not. Rather he elected to lay blame for the absence of prints at his clients doorstep (App 100, p.428, line 14): The State claimed that Diane had removed the murder weapon from the trunk. Yet out of 14 prints removed from the trunk of the car none were hers. Gorham questioned Diane's former Defense Attorney on this point:
(Gorham) Q: "Part of the State's case, however, was that Miss Downs who had been driving the car went back to the trunk and retrieved the gun from the trunk and then went and shot her kids, correct"?
A: (Jagger) "Yes"
Q: "Isn't it important then that her fingerprints weren't on the trunk of the car " ?
A: "Then....I guess my position at that time is that that was something still dependent on her credibility.... I would have expected actually to have her fingerprints all over the car.... assuming hypothetically the entire car fingerprinted, nothing at all shows up her....that looks more like maybe someone destroying evidence..."
Fourteen prints were lifted from the trunk of Diane's car. None of them were hers. None of them were voided (smudged). No one could allege Diane opened her trunk and then attempted to wipe her prints off later. And to what end would she need to erase her 'own' prints off her 'own' car ?. Its nonsense. If not for the fact that she had washed her car four days earlier and had no need to go to the trunk thereafter. Her prints would have probably been on the trunk.
Prosecutor Hugi declared in his affidavit "I personally observed Mr. Jagger inspect all the evidence in this case...In my opinion the evidence didn't support Diane's claims", (App 9, p.4, line 20). Mr. Hugi admits he discussed the fingerprint report with Defense counsel and 'together' they concluded the evidence was worthless to Diane's defense, (App 99, p. 372). In fact Mr. Jagger admits he received the report and didn't use it to defend his client, (App 100, p.424). Prosecutor Hugi coerced Christie to testify under oath that her mom opened the trunk and when she came back the shooting began, (App 72, p.666). Surely the absence of Diane's prints on the trunk would have been important to the jury's ability to decide the case. Without doubt Mr. Jagger was ineffective when he decided 'together' with the Prosecutor to withhold that evidence from the jury, 'and' his client.
Not only does the fingerprint report prove Diane did not remove a gun from the trunk of her car, but that Mr. Jagger knew the State admitted the gun they used to convict Diane with was not the murder weapon, (App 60) and Mr. Jagger knew State witness, Criminalist, John Murdock, perjured himself in court to damage Diane.
Diane had entered and exited the driver's door numerous times that week (as did half a dozen other people 'after' Diane came under constant police observation). And yet not one print was lifted from the driver's door. Why?. Mr. Jagger said it best :
"That looks like maybe somebody then destroying evidence".
And the destroyer of that evidence was the custodian of that evidence...the State. Mr. Jagger's behavior was nothing short of criminal when he conspired with the Prosecutor to keep that evidence from the jury.
The Prosecution claimed Diane could not have held the key's in her hand when attacked. This was because Christie said she heard music being played on the car's cassette player at the time of the incident. Therefore the key's must have been in the ignition and not in her hand. The fact is the music in question had been playing most of the day in the car because it was Cheryl's favorite music. And even if we are to believe that Christie did make this claim. We have all experienced music in our subconscious which tends to play itself whether we like it or not and leaves either by being substituted for something else or simply through time. If this was 'Christie's' claim, then the music was probably still playing in her subconscious as she lay on the back seat and simply played on in her head, 'after' the music was turned off. It is a common occurrence. It is clear that Christie was 'sleeping' or at least in a state of drowsiness as she lay on the back seat when the shooting began.
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