Winter of frozen dreams (25 page)

Torphy had heard the arguments previously, and he ruled against the defense.

Franke ambled to the witness chair. He and Chris Spencer reenacted the script.

Daviess words, as read by Franke, and perhaps because they were articulated by someone other than the timid shipping clerk, transfixed the courtroom. The episode was haunting, almost theatrical. The starkness of the words, the desperation that clung to the edges, the poverty of the relationship echoed.

Barbara Hoffman called after work and asked if he wanted to come over. "I said, certainly."

Davies picked her up at 8:30 p.m. or so, and they drove to his apartment, stayed for a half hour, and drank some wine. They drove back to her apartment, drank vodka and orange juice, and watched TV—"Johnny Car-sons monologue, whatever was on"—until midnight, when Barbara dozed off. Davies dozed off too.

They slept on the couch, then Barbara awoke and told Davies "that after work on Wednesday she had found a dead body."

"Where?" Spencer asked, but his voice barely made an impression. His questions faded. It was Daviess words that stumbled on, sad, revelatory.

"In her apartment. In the bathroom ... it looked terrible, she said, kind of beaten."

Barbara told him she didn't know how the body had got into her apartment.

At 4:00 a.m. Davies went and retrieved his car from

the Lake Street parking ramp and drove to the rear of the building. Barbara went to a snowbank in the corner and dragged out a body wrapped in a sheet. He helped her wedge it into the backseat.

They drove across campus, up Observatory Drive, with Barbara in the backseat with the body, and she suggested they go out to the country, so he headed through Shorewood Hills, then west, out Mineral Point Road. They ended up near the ski jump on Tomahawk Ridge, and she told him to pull over.

They dragged the body to a grove of trees. Barbara removed the sheets, tossed them into a garbage bag, and threw enough snow over the body to cover it. Davies steered the car back onto the road, and Barbara obscured their tire tracks with the branch of a pine tree. They drove back to her apartment. If there was any conversation, Davies didn't recall it.

Barbara told him to clean his clothing, polish his shoes, and vacuum the car. She mentioned it would be better if he forgot about what he had seen.

"I didn't think it was really relevant who it was. It wouldn't have meant anything to me."

He got home and followed her commands about cleaning. That day he went to Spring Green to see his mother, and he returned to Madison the next morning to tell the police what had happened.

The testimony lingered, candid, remorseless, almost devoid of introspection.

A disgruntled Eisenberg called on Jack Priester, a partner in his law firm, to recite Daviess part in the cross-examination. The reading was flat. Eisenberg, on February 16, 1978, had not charged at Davies with the ferocity he had exhibited minutes earlier when Lulling was on the stand. Obviously he had been saving the toughest questions for a more significant occasion. He'd been merely probing Davies. It was a reconnaissance mission, not the war. Eisenberg was certain he could unravel Daviess testimony, shred it into tiny pieces in front of a jury, but that opportunity had been lost.

Thus Davies bore witness against Barbara Hoffman without having to confront a rigorous scrutiny. Under the defense attorneys cross-examination from that day the shipping clerk noted that Barbara had been nervous and upset when she'd told him she had found a body in her apartment. Eisenberg had also asked: "Miss Hoffman told you that she did not kill him, correct?"

"Correct," Davies had answered.

The brief exchange was a reflection of a reflection, a reading of testimony that was a recollection of a conversation. Yet it was the closest the jury would come to hearing Barbara Hoffman declare her innocence.

The rest of the morning and most of the afternoon session proceeded without incident. There were minor squabbles over minor points. Exhibits were entered into the record. The slow compilation of circumstantial evidence continued.

Jo Wegner testified that the blood sample from the snowbank behind 638 State Street matched the blood type for Harry Berge.

Next the jury learned that John Hunt had resided at 638 State Street, apartment 305. John Hunt was twenty-two years of age, employed at Forest Products Laboratories. In dress and demeanor Hunt appeared conservative and sincere. He approached his Bible studies and his life seriously.

On the morning of December 23rd John Hunt awoke between 5:15 and 5:30 A.M. and sat on the sofa to do his Bible readings. He heard a noise, peered out the window and into the small lot below.

"What, if anything, did you see when you looked out the window?" John Burr asked.

"I saw a car parked."

"What kind of car?"

"A black car with a white roof."

"Did you see anyone around the car?"

"Yes, sir, I did."

"Who?"

"Barbara Hoffman."

"How long did you watch Miss Hoffman?"

"Two to three minutes."

"What caused you to look out the window in the first place?"

"The slamming of a door, or a trunk."

After watching Hoffman walk around from the rear of the car, Hunt turned back to his Bible. He heard the squeaks of the building door, the jingle of keys, and Barbara entering her apartment. Shortly she exited again. Hunt heard the outside door and saw the car back toward the green Dumpster.

About an hour later Hunt, who had worked as the building janitor, was completing his cleaning chores. Barbara passed him on the stairs. They didn't speak.

"What, if anything, was she carrying?"

"A clothes basket."

"Could you tell what was in the clothes basket?"

"No, I could not."

Hunt identified Harry Berges car, a white-over-black Oldsmobile Cutlass, as the vehicle he had seen. He was certain it was not Daviess car behind the building, for Davies picked Barbara Hoffman up every morning at around 8:00 a.m. and drove her to work. Daviess car was white with a black roof, the opposite of what had been parked in the back.

Hunts testimony was crucial. It provided independent corroboration of Berges presence at 638 State Street, bolstered Daviess credibility, and rendered another incident of Barbaras suspicious and inexplicable behavior.

To discredit Hunt the defense attacked his identification of the Berge vehicle. Barbara Hoffman had scratched notations on her legal pad, and Eisenberg was also aware of the discrepancies. Harry Berge drove an Oldsmobile Cutlass, a black car with a white roof. Jerry Davies owned a late-model Chevrolet, which had a white body and a maroon top. Hunt had incorrectly identified Daviess car, referring to it as black over white. It wasn't a major blunder, but if the doubt could be exploited, Hunts credibility might collapse.

The parameters of what the witness saw were established by Burr. Eisenberg attacked the witness's vision.

''How did you know it was Berge's car behind 638 State Street?" asked Eisenberg.

He didn't know, Hunt said, until he was later shown photographs of the car by police and told it belonged to Berge.

"What color is Gerald Daviess car?" Eisenberg inquired.

"White with a black top."

"What color is Harold Berge's car?"

"Black with a white top."

"So this car here was Gerald Daviess car, is that correct?" Eisenberg asked. He was holding up exhibit 97, a photograph of Harry Berge's car.

"No, sir," Hunt replied.

"Black with a white top was Berge's . . . Let's start over. What color was Berge's car?"

"Berge's car, I have been told . . ."

"What do you knowl" Eisenberg interrupted him. "I want to know what it was, not what you were told."

"This is the car I have seen," Hunt said, slightly flustered and pointing to the photo.

"It was a black car with a white top?"

"Yes, sir."

"What color was Gerald Daviess car?"

"Gerald Daviess car is a white car with a black roof."

"How often have you seen Gerald Daviess car?"

"Oh, twenty times."

"And Gerald Daviess car, the top of his car was black?"

"That is true, sir."

"Who told you that?" 1 can see it.

"Who told you Gerald Daviess car was black-topped?" Eisenberg pressed.

"I saw it."

"Twenty times?"

"Yes, sir."

"Are you certain?" Eisenberg was pushing hard. Hunt seemed annoyed.

"Yes, sir."

"Are you color-blind?"

"No, sir."

"You know the difference between black and green, don't you?"

"Certainly hope so."

"You know the difference between red and white, don't you?"

"Yes, sir."

"Do you know the difference between red and black?"

"Yes, sir."

"Showing you exhibit 31"—a photo of Jerry Daviess car—"what color is the roof of that car?"

"I would say it's reddish or maroon," Hunt admitted.

"What car is it? Is it Gerald Daviess car?"

"Yes, sir." But his voice lacked confidence.

"But it can't be Gerald Daviess car, because Daviess car has a black top. That's what you testified to."

"According to my testimony, yes."

"You told Detective Reuter that a white-over-black, late-model car picked up Miss Hoffman regularly, yes?"

"Yes, sir."

"You told the jury that Daviess car was white with a black top, right?"

"Yes, sir."

"White with a black top isn't black with a white top, is it?"

"No, sir."

The witness was confused. The rapid pace of the questioning, the hostile voice, the disparaging tone and the glare of intimidation, the relentless transposition of colors had knocked Hunt's confidence. If Eisenberg had halted his attack, Hunt's efficacy as a witness would have been blunted and the jury could not have helped harboring doubt about what Hunt had seen.

However, Eisenberg did not cease. He appeared to be dissatisfied with simply discrediting Hunt's vision. Wound-

ing Hunts credibility, which was all that was necessary, was insufficient. During his cross-examination of Hunt, Eisenberg seemed to sneer while referring to Hunts Bible devotions, a gesture that could do nothing but alienate the jury.

The cross-examination strayed into other areas but soon returned to the car and its colors.

"What was it you saw, white over black or black over white?" Eisenberg pressed. "Are you sure it wasn't Berges car you spotted in the mornings? The police report states you saw a white-over-black vehicle on the morning of December 23rd. Couldn't that have been Daviess car?"

The lawyer badgered Hunt about his recollections of color, about the darkness at 5:00 a.m., about his description and memory and eyesight. He flailed at the witness who was not color-blind, who had misidentified the color of a car roof he claimed to have seen over twenty times, who had claimed to recognize Berges car after viewing it for a couple minutes in the light of a seventy-five-watt bulb at 5:30 in the morning. Yet Eisenberg had underestimated John Hunt.

The incessant forays about the car were a severe mistake. In the midst of the acrimonious cross-examination Hunt collected his poise. Instead of crumbling, he solidified. The perpetual questioning lasted for over a half hour and allowed the witness to restate his observations.

He had seen a black car with a white roof behind 638 State Street on the morning of the 23rd of December; he was certain. He was unfamiliar with the automobile. When police showed him a photo, he correctly identified it, and it was Berges car. Hunt never corrected himself, nor did he apologize for his earlier confusion. He spoke confidently of what he had seen. Whatever the police report said, he knew what he saw. Whatever terminology was used by the officer, it didn't alter what he had noticed.

The reiteration after the interminable struggle was what made a lasting impression. Hunt was sure of what he'd seen, and he wouldn't be shaken a second time. Eisenberg had let the witness get away.

Saturday morning brought Madison blue skies, a sun as fat as a state fair honeydew, and the farmers' market, where local growers displayed an assortment of treats beneath the maple and oak canopies that shade the capitol square. Bushel baskets brimmed with fresh produce—ruby leaf lettuce, sugar snap peas, spinach, and radishes. Willie sold his Forgotten Valley Cheese. Ollie Mhyre, whose denim overalls had more patches than an old tire tube, offered white and purple onions—take your pick—at 27C a pound. One block south of the vegetable stalls and coffee vendors Judge Torphy conducted a rare Saturday session. It was June 21st.

The prosecution had switched its focus from Berge to Davies. The tactics did not vary. Slowly and methodically, the state plodded on with its presentation of evidence. Insurance policies and bank materials were subpoenaed and entered into the court record.

On February 24, 1978, Metropolitan National listed Barbara Hoffman's checking account as holding a balance of $14.58. Yet that same day Transport Life received a premium payment drawn on the account for $6,618.30. Three days later Barbara Hoffman placed a stop-payment order on the check.

Through Burrs prodding Pat O'Donohue detailed for the jury the original request, in November 1976, for $3 million of life insurance and the months of negotiation and struggle before Transport Life agreed to underwrite the policy.

Change of beneficiary forms were taken as evidence. On the three small life insurance policies, totaling $20,000, Barbara Hoffman had been made the beneficiary, replacing Ruth Davies. These changes had occurred a mere three weeks before Daviess sudden death and listed Barbara as fiancee/wife.

Eisenberg began his cross-examination of every insurance person who testified—O'Donohue, Phil Sprecher,

David Wallace—with the same question: "If you were going to kill someone, would you buy term or ordinary life?" Each time, Burr objected and the objection was upheld.

In questioning O'Donohue the defense lawyer was able to point out that because the policy was term life rather than whole it had no cash value. Furthermore, false statements by Davies regarding his income, specifically that from massage parlors, would have invalidated the policy. It was also mentioned that the policy held a suicide clause. Should the insured commit suicide within two years of the effective date of the policy, whether sane or insane at the time of the act, the insurance company's liability was limited to the amount of premiums already paid.