Winter of frozen dreams (24 page)

But Burrs opening remarks seemed to anticipate the problems of a case built on circumstantial evidence. "Please listen to all the testimony in this case, direct and cross-examination, every exhibit, each and every witness. Look at them as they're testifying. These chairs are not comfortable. The acoustics in here are terrible. ... It will likely get very hot, so it may be uncomfortable. So please, please listen to the evidence very, very carefully."

The words sounded like a plea.

The defense, Eisenberg said, would withhold opening remarks until the state had presented its case. The defense attorney grabbed for the underdog role, a position he preferred. He talked to the jury briefly, asking their help and goodwill in his fight against the court-prosecutor conspiracy.

The first witnesses called were Madison police officers who described Daviess visit to precinct headquarters on Christmas morning 1977, and the uncovering of a body, later identified as Harry Berge, in a snowbank on Tomahawk Ridge. The initial search of Barbara Hoffman's apartment at 4:55 p.m. that day was detailed, including the finding of envelopes, a library card, and a bank book belonging to Linda Millar.

Kenneth Couture stated that he saw books on autopsies and death investigations on a bookshelf in the living room but that the volumes were not confiscated. He also noted that both the bathroom fan and the air conditioner fan in the living room had been left on.

John Cloutier had investigated Berge's home in Stoughton the following day and noticed Barbara Hoff-

mans phone number scribbled on the cover of the telephone book. Furthermore, receipts dating back to December 21, 1974, issued from various Madison massage parlors, were discovered in Berges closet. Some of the credit card receipts were initialed by B.H.

Besides police officers, co-workers of Berge at the UniRoyal plant also testified. William Stelling, from the personnel department at UniRoyal, testified that on October 13, 1977, Berge had transferred his 34,500-dollar life insurance policy to Linda Millar. He seemed under no pressure or duress when he did this.

Dane County's register of deeds, Carol Mahnke, was called to the stand. She related that on October 28, 1977, Berge had changed the deed of his home, making Barbara Hoffman a joint tenant. Berges attorney, Kenneth Buh-row, remembered outlining the various methods of ownership to Berge, then altering the deed according to his clients instructions. Berge was relaxed and comfortable throughout their meeting and seemed under no external pressure.

A representative of Wisconsin Bell gave testimony that Barbara Hoffman's phone number had been changed frequently, as often as five times a year. A record of the long-distance calls made from apartment 306, 638 State Street, from October, 1977, to April, 1978, was entered as evidence.

At the time, these long-distance records seemed of marginal importance, just another small piece in the vast collage of circumstantial evidence. Burr wasn't even certain of their relevance. But there was no objection, so they were put into the court record in hopes that later they might prove useful. The long-distance calls would sit unnoticed for a week. But the next time they were mentioned, they would stun the courtroom.

The prosecution moved methodically, using its interrogation like rocks in accumulating a mountain of testimony against Barbara Hoffman. The evidence was stacked chunk by chunk. It was dull, painstaking, and difficult to

refute. The irascible Eisenberg chipped away where he could.

Couture was grilled for not obtaining another search warrant to seize the autopsy books he claimed to have seen. The search of the apartment was criticized. The door had been yanked off the hinges to gain entrance. Eisenberg attacked the officers' slovenly methods of investigation. He used the cross-examination of Stelling and Buhrow to emphasize Berge's calm demeanor when transferring insurance and property, with the implication that Berge had acted independently of any pressure, especially from Barbara Hoffman.

Yet as the first day of the trial closed it was clear that Eisenberg s flamboyance had been muted by the prosecutions assiduous presentation of detail and fact.

Friday, June 20th, and the second day of the trial opened with Chuck Lulling on the witness stand.

Two years away from the MPD had not quelled Lulling s fascination with the deeds that other people do. He worked as a private detective and was happy to be outside the constraints of the city bureaucracy. He considered it an irony and a compliment that a majority of his clients were defense attorneys who had challenged his investigative methods when he'd been a cop.

Retirement had not affected Lullings swaggering posture or brash confidence. His shoulder stiffened with bursitis. However, the ivory hair and mustache, the sanguine complexion remained unchanged. He wore a suit jacket and tie and cowboy boots and an ego too big to hide. A moment before being summoned Lulling stood in the hallway, swapping the scuttlebutt with old courthouse acquaintances, the bowl of his pipe casting a thick fog of smoke.

Because of the animosity between Lulling and Burr, Chris Spencer conducted the direct questioning. The scope of the testimony was limited when Torphy ruled that the former detective supervisor could not relate conversations that had occurred between him and Davies without corroboration. This eliminated exploring Daviess relationship with Hoffman in the months after Berge's death.

The interrogation of Davies on December 25th was recalled. Lulling spoke of Daviess extreme upset and state of turmoil. But it didn't take long for Eisenberg to challenge the witness.

"Can you give us a description of what Mr. Davies looked like at the time?" asked Chris Spencer.

"Are you speaking of his physical condition?"

"That's correct."

"Extremely nervous," answered Lulling.

"Could you elaborate on that?"

"Well, at one point in the questioning I was of the opinion . . ."

"Objection to what his opinion was," shouted Eisenberg.

"You may state what you saw, what you observed," Torphy instructed the witness. Lulling began again.

"It looked as though . . ."

Again Eisenberg was on his feet.

"Objection as to what it looked like, though he can state as to what he saw."

"That's correct," said Torphy.

"What did you see?"

"I saw that one more question was probably going to produce a faint."

"Did his nervousness continue throughout the inter-view?

"Yes, sir."

Lulling recounted his part in the search of Hoffman's apartment and the gathering of evidence. Berge's movements, from work to the tavern to home and to Madison, were reconstructed, with Lulling's computations regarding

the timing involved. He also remarked that blood had been discovered in a snowbank behind 638 State Street on January 19, 1978, and that he personally had transported the specimen vials to the state crime lab for typing.

As many in the courtroom had anticipated, Eisen-berg's cross-examination of Lulling was combative. The two men had a history of angry confrontations and bitter exchanges, both in and out of court. On past occasions Eisenberg had accused the detective of bullying tactics during interrogation, of soliciting false confessions, of subverting Miranda rights, of fabricating evidence and failing to file proper reports in an effort to hide information from the defense. As soon as Spencer finished, the defense lawyer glared at Lulling and attacked.

"What s your reputation for truth and veracity?" Eisenberg fired.

Burr objected that it was an improper question and was sustained. Eisenberg rephrased it.

"Mr. Lulling, do you lie?"

"I think everyone has," Lulling quipped.

"Do you lie under oath?" Eisenberg asked fiercely.

"No, sir."

"Have you ever falsified any police report?"

"No, sir."

"Ever planted evidence?"

"No, sir."

"Mr. Davies was extremely nervous, and one more question might have produced a faint, is that correct?"

"Yes, sir."

"Just like a man who had committed a murder?"

"I don't agree with that description," replied Lulling.

"Have you ever seen people who have just committed murder, and have they come in to you being extremely nervous?"

"I don't recall anyone who has just committed murder ever coming to me."

"You always go out and get them?" Eisenberg asked facetiously.

"I try to," answered Lulling, but Eisenberg grinned.

Every question seemed an effort to impugn the former detectives character.

Eisenberg ranted about the blood in the snowbank behind 638 State Street. Why was it recovered three weeks after the alleged homicide? Why had it gone undetected on prior searches?

Lulling attributed the delay to severe weather conditions—a forty-one-below-zero windchill on Christmas Day, the date of the first search—and to shoddy police work. The explanation did not satisfy Eisenberg. He strolled the courtroom and pumped volleys at Lulling, strongly insinuating that the blood could have been planted by an overzealous investigator.

Lulling did not squirm under the heat of the lawyers innuendo.

"Mr. Lulling, when was the first time that you executed an affidavit or applied for a search warrant of Barbara Hoffman's apartment at 638 State Street?"

"I don't recall."

"When was the first time you were in her apartment at 638 State Street?"

"I can't give you a date on that, counsel."

Eisenberg handed him a copy of the complaint for search warrant dated December 27, 1977.

"Does it say that Charles Lulling is the one who applied for that search warrant?"

"Yes, sir."

"And I take it that you were looking for evidence of a homicide?"

"Yes, sir."

"Did you find any blood when you went to that premises on December 27, 1977?"

"Not that I recall."

"You looked for it, didn't you?" shouted Eisenberg. His questions were quick, banging like reports from point-blank range.

"I certainly did," replied Lulling, unabashed.

"You again searched Barbara s apartment on another occasion, didn't you?"

"I believe so; yes, sir."

'That could have been January 6, 1978 ... is that correct?"

"Yes, sir."

". . . again you were looking for evidence of a homicide?"

"Yes, sir."

"And you didn't find any blood at that time, did you?"

"Not that I recall."

"Were you present when the apartment was searched on that date, and were ultraviolet lights used?"

"I believe that . . ."

"Just were you present on that date?" fired Eisenberg.

"Well, my recollection is that I did see Deputy Oasen with a light."

"And you used Hemastix that particular day, didn't you?"

"I never used them."

"Persons under your supervision?" Eisenberg shot, obviously tired of Lulling's insolence.

"On the 6th?"

"On the 6th, on the 27th—yeah, or didn't you know?"

"I didn't," said the former detective. His voice was modulated and calm. "My recollection of persons using sticks in this thing are confined to Jo Wegner of the state crime lab."

"And that would have been on the 6th?"

"I don't believe that was the date. I'm not sure."

"You're not sure?" bellowed Eisenberg.

"That's right."

"If the previous testimony by Mr. Oasen said it was January 6th, would you think I was mistaken?" demanded Eisenberg. He was at the witness stand now, confronting this uncooperative ex-cop.

Lulling sighed and shifted in the chair. It seemed he was tired of this game.

"I wouldn't agree. The dates—it's so long ago, so much water over the dam, that the dates escape me. But I'm aware of some activity."

"In any event, no blood was found . . . and on January

19th, the day after Barbara Hoffman's arrest, you ordered Officers Gartner and others to look for blood behind Barbaras apartment?"

"That's correct."

"You refused to accompany them to the scene, is that right?"

"I ordered them and certain equipment taken there and certain procedures followed to search for blood, yes."

"But you were busy doing other things?"

"I don't recall what I was doing."

"In any event, on January 19th, they found blood."

"Yes, sir."

"And Miss Hoffman was arrested the 18th, right?"

"Yes, sir."

"And Miss Hoffman had to know, don't you believe, for the last three weeks before her arrest, that she was a suspect in Mr. Berge's death. Correct?"

"Yes, sir."

"And there would have been nothing to prevent her from going behind her apartment and destroying evidence that might have been there," Eisenberg concluded. "Nothing. There was nothing to prevent her from doing that, was there?" His insinuation was clear. If there had been incriminating evidence lying in the snow for three weeks, Barbara could have easily disposed of it. "You never saw Barbara Hoffman go to the rear of her apartment where the blood was eventually found to try to destroy it, did you?

"No, sir."

If Lulling's testimony had been marked by rancor and hostility, the next witness evoked quite a different effect. Burr called Jerry Davies to the stand.

In a scenario approved by Judge Torphy, law student Matt Franke, who was assisting the prosecution, read Jerry Daviess verbatim testimony as given before Judge William Byrne at a prelim hearing on February 16, 1978. This testimony was confined to the events of December 23, 1977, and the disposal of the body found in Barbara's apartment.

Although informed of the unusual procedure, Eisen-berg strenuously objected to Daviess statements being recited aloud to the jury. He opposed such a format as prejudicial. Furthermore, he argued, it usurped his powers of cross-examination. Regardless of the fact that he had cross-examined Davies during the prelim, the severity and power and direction of his questioning would have been different had he known the significance of the days testimony. The arrangement, while not unprecedented, was unfair and placed the defense at a distinct disadvantage.