Nason trial hits snag with anonymous call

Date: 1995-11-04

By Eric Dolson

"How can you say that facts obscure the truth?" we were asked by someone unhappy with our coverage of the Nason trial. "The truth is made up of facts!" It took a minute to consider a reply. "Facts can exist in isolation," I replied. "The truth depends on context, on how those facts are woven together. The prosecution weaves the facts together one way, the defense another. Same facts, different claims to the truth, which might be something else altogether."
But the critic wasn't interested in our musings on truth, nor simply unhappy with our style. "I am just sick of it. Sick of all of it. It's time for this to be over."

We agree. But in the meanwhile, the following includes impressions and history beyond words spoken last week in the court room. Reader be warned.

On Friday Judge Sullivan made a very rare request of the press from the bench at the Nason trial. While saying all the right things about the First Amendment and stressing that it was a request, not an order, he asked the press not to publish that an anonymous male caller had contacted the judge's secretary, a defense attorney and the local television station, saying a juror had been overheard at a hair salon that the jury was going "to hang" the Nasons.

The television station may not have gotten the word, but the story was broadcast and subsequently appeared in print. It may have been an idle comment by someone not at all connected to the trial. The call could have been a prank. It could have been a tactic.

But if a juror made that statement, a year's worth of trial, one of the longest and most expensive in Oregon's history, could go down the drain. The call was under investigation, hence the judge's request for press discretion.

The call came on Thursday. No one, not the judge, not the Nasons, not their attorneys and probably not the prosecution got much sleep Thursday night. On Friday, the jury was sent home early without hearing any testimony. The jury was already supposed to have this week off, a week to go hunting, a week to play golf, a week to attend to their jobs. It won't be until October 9 that the cross examination of Diane Nason will continue.

Before it was interrupted, the trial proceeded at its normal, glacial pace. There were detailed arguments over how much of 100 cubic feet of Social Security records would be required to show the Nasons had in fact received some government support (despite claims to the contrary) for their severely disabled children.

There were smiles when it was learned the government had destroyed much of this documentation and only computer summaries remained. Relief?

Then Prosecutor Kathleen Payne-Pruitt again had Diane Nason on the stand for cross examination.

"Was 1985 (the year two children died of Shigella) a busy year for you?" the prosecutor asked.

"I don't know that busy is a word I'd use," Diane replied.

Payne-Pruitt asked how many children were in the family in 1985. Diane refused to answer "without consulting my documents."

Later, after detailing the disabilties of six children who came to the home during this period, the prosecutor asked if there were approximately 44 children in the home at this time.

"I don't think I should speculate," responded Diane Nason, again saying she would need to consult her own documentation.

Later, Payne-Pruitt asked Diane if there were a lot of phone calls following a rebroadcast of a "60 Minutes" show on the family, and a "700 Club" show in May of 1985. There were, Diane acknowledged, calls that she would return in the evenings, after the children were in bed.

"Were you giving speeches?" the prosecutor asked.

"Yes."

"How often?"

"When someone would call, if it didn't interfere with the family and care of the children," Nason answered.

"Could it have been as many as five speaking engagements a month?"

"I would not commit to a number," Diane replied.

"From one to 60 in the year?" Payne-Pruitt pressed.

"I won't commit to a number. There were speaking engagements," Diane replied.

This is how much of the cross examination went. Payne-Pruitt would ask questions, Diane Nason would answer either incompletely or obliquely.

It was tug-of-war. Hours of verbal tug-of-war.

It was as if Diane could not answer yes or no, that she always wanted to leave an exit, an unspoken interpretation of her answer in case she needed to go out another door.

Payne-Pruitt, on the other hand, argued each point, wrestled with replies, sometimes interrupting Nason when an answer was going astray. The defense raised a continuing objection that the cross-examination went beyond the scope of direct questioning.

Occasionally the judge would step in, allowing Nason to finish her answer, then he would advise her to answer only the question asked. He suggested that the prosecutor modify some questions.

Much of the testimony on September 27 dealt with epidemics of Shigella which struck the Nason family, one of which resulted in the death of two children, Jason and Jodi, over the week of Thanksgiving in 1985.

Payne Pruitt dug into events in 1978 when the family, then with 16 children, lived in Ashland. Diane herself contracted Shigella at that time and was hospitalized on March 31, 1978, as were five of her children during that week.

Payne-Pruitt asked if Diane was "getting better at the end of your stay?"

"That's why they released me," Diane said with a smile that also said "gotcha."

But the prosecutor drew out that the family suffered a recurrence of the disease in August and September of that year. And later, detailing the outbreak of Shigella in 1985, pointed out that in 1985, six Nason children showed some of the same symptoms as seen in 1978.

She pointed out that Diane had known that dehydration was a serious concern with Shigella, herself having been given fluids intravenously while in the hospital in 1978.

On the Tuesday before Thanksgiving 1985, Jason Nason died of dehydration related to shigella. There were as many 60 to 90 people in the home over Thanksgiving. On the Friday after, Jodi Nason died of dehydration.

Then Diane gathered the children together and tried to determine who had symptoms or were at high risk. Five more children were taken to the hospital.

Shigella is a "reportable" disease, which means that the public health department is notified. In Ashland and then again in Sisters, public health officials visited the family and brought Information on how to block spread of the disease.

But in 1985, Diane told public health that she was being "harassed." She said she would contact an attorney. She told them she did not believe she had to give stool samples. One daughter lost a job, Diane said, and other children were being teased at school.

It was, Diane testified, necessary "for us to pull together as a family during a time that was very difficult."

For a variety of reasons, in 1986 the family got an unlisted phone number, and refused to give it to the department of health.

Prosecutor Payne-Pruitt asked Diane if she knew that the only job of public health was to make sure Shigella was not spreading.

She asked why public health, which by now was barred from the property and had to pick up samples at the gate, had received 30 different stool samples, but all from the same source.

"Why on earth would you take one sample and submit 30 names?" Payne Pruitt asked.

Diane said she had not done this.

But it was clear that Diane was not happy at the time with the official scrutiny her family was receiving, whether from public health or Oregon Children's Services Division. At the time she claimed harassment. And the family continued to grow, from 44 in 1985 to at least 60 children in 1987. It would get even larger in the next three years.

And while the Nasons received more exposure in one sense, even being celebrated in a made-for-TV movie, it grew more isolated in another. Guests were more carefully monitored and scheduled. There was the business office away from the family, and the unlisted phone.

Children were withdrawn from school when the Nasons started their own, and from the Sisters Baptist Church which had in the past served as an important foundation of the family's support.

The "Celebration Family" was definitely changing, in addition to adding new children.

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