Winter of frozen dreams (29 page)

offered an alibi that exonerated her daughter: Barbara could not have been guilty of these heinous crimes, for one or both of her parents had been with their daughter on or about the time these murders were committed. Robert Hoffman was sleeping on the sofa in his daughters apartment the night the prosecution alleged she was driving around the countryside burying a body in a snowbank. The Hoffmans were spending a quiet Easter weekend with their daughter when the authorities contended she was feeding cyanide to Jerry Davies and sliding his body into a bathtub. The contradiction was stark and undeniable. If Vi Hoffman was credible, the jury would have to find Barbara not guilty.

The prosecution did not grill Vi Hoffman on every detail of her exhausting and doleful testimony. John Burr read, correctly, that the gallery, the press, and perhaps the jury had been deeply touched by the woman's pain and confusion at events that had spiraled far beyond her control. The natural response was sympathy. Burrs cross-examination was short and courteous.

The first question was obvious: why hadn't she divulged this story to the police?

Vi Hoffman answered that Barbara had an attorney who had been told the information, and she trusted it would be handled as he saw best. Besides, police never once contacted the Hoffmans until June 2, 1980. They were never interviewed, never called, until two weeks before the trial.

The admission was a small surprise and a large embarrassment for the Madison cops who had handled the investigation.

Burr trod gently. What he seemed most concerned about were Mrs. Hoffmans sleeping habits. Was she a light sleeper? Did anything disturb her the Easter weekend she slept in her daughters apartment? Was there any movement or commotion that night? Any telephone calls? Any telephone conversations? The odd questions were supplied with swift answers.

Yes, Vi Hoffman claimed that she was a very light sleeper and easily disturbed. Nothing had bothered her that night. There were no phone calls, no one shuffling around. The family went to sleep early, without any disturbance during the night.

Burr thanked her. He had no further questions.

Spectators and press were quizzical about the curious method of inquiry the prosecution had chosen. Vi Hoffman's testimony remained unchallenged and untainted.

Robert Hoffman followed his wife to the witness stand. He was fifty-eight years of age, a mechanical design engineer. He had a soft, reluctant manner. Whereas Barbaras mother impressed as gutsy and emotional, her father appeared introspective and detached. He described his middle daughter as "spontaneous with her affection/ 7 a trait that was probably alien to her dad. He stated that Barbara had been financially self-sufficient since her twenty-first birthday, and his intonation indicated his approval. Though his daughter studied biochemistry at the U.W., she was not a chemist, and he had never noticed any chemicals or lab equipment in her apartment.

As he did with Vi Hoffman, Eisenberg brought up the topic of the massage parlors. Barbaras involvement was discussed and dissected, but the fathers analysis lacked the power and drama of the mothers wrenching, tearful remarks. "She wanted to wipe out that period of her life. It was nothing but bad memories, that she was afraid that some mark or stigma had been put on her that would follow her for however long—I don't know, maybe for the rest of her life."

"What, if anything, did she say about Ken Curtis?" asked Eisenberg.

"She said he was a terrible man. She said she feared him."

Robert Hoffman then enumerated the frequency of his visits to Madison. He related where he usually parked, what time he went to bed, and what time he awakened. He testified that the night Berge had died he was in his

daughters apartment and nothing unusual had occurred.

What about the automobile John Hunt had observed at 5:30 A.M.?

The Hoffmans' car was a late-model Plymouth, black with a bronze top, and Barbara must have been moving it so that it wouldn't be in the way in the morning was Robert Hoffman's simple explanation.

Barbaras father stayed at her apartment the next night, December 23rd, and again nothing extraordinary happened.

This statement was in direct conflict to the testimony given by jerry Davies at a prelim hearing in February 1978, which had been read to the jury on the second day of the trial. At the time Jerry Davies claimed that he and Barbara were drinking vodka and orange juice and watching the "Tonight" show, Robert Hoffman insisted that he was snoozing on the sofa after a busy day of Christmas shopping with his daughter.

Mr. Hoffmans remembrance of the Easter weekend when Davies had died coincided precisely with the account given by his wife.

"Why didn't you tell the police of your being with Barbara?" was John Burrs first query of the witness.

"I told Mr. Eisenberg," the father replied.

The prosecutor gave Mr. Hoffman an incredulous glance, which he shared with the jury.

"Did you ever inquire of your daughter, subsequent to her being charged with the first death, anything to the effect of 'What basis are they charging you?' '

"I'm sure I asked that question, and she said she had nothing to do with it and she didn't know."

"In your own knowledge, did you ever try and find out on what basis she was charged?"

"No, sir. I relied upon Mr. Eisenberg."

"When were you first asked to remember in detail the events of that weekend before Christmas, when you came up to get your daughter?"

"When I read the first page of the complaint and read that Gerald Davies was pointing his finger at Barbara."

"And of course you went right to the police station and told the police these things?"

Eisenberg spoke up for the witness. "The police wouldn't have listened if he did."

"There is a question before the witness," said a stern Judge Torphy.

"Did you go to the police with this?" Burr repeated.

"No, sir."

Burr let the answer hang in the air for all to contemplate. Unlike his questioning of Vi Hoffman, where he had been careful to filter any judgment or emotion, Burr sighed in disbelief. Then his tune turned cynical.

"When did you realize you had been with your daughter at the time Mr. Davies died?"

"I knew we were with her on Easter."

"Did you tell the police anything about that?"

"No, sir."

"Did you tell anybody in the district attorneys office anything about that?"

"No, sir."

Robert Hoffman had learned of Daviess death when he'd read an article in a small local paper that ran a reprint from the Wisconsin State Journal. He never phoned his daughter and discussed what he had read, because he knew the accusations were not true.

On December 22nd and 23rd and on March 25th, Mr. Hoffman acknowledged, he had slept on the sofa in the living room of Barbara s apartment. The phone was on a table nearby. Under Burrs persistent questioning, he admitted that he was a very light sleeper, that there were no disturbances, no late-night phone calls, no commotion on any of the nights. If there had been any, he would have awakened immediately, he said.

A strange, befuddling sensation lingered in the courtroom when Robert Hoffman had completed his testimony. Ostensibly the parents had provided an alibi for the daughter that the prosecution only peripherally had challenged. Their statements were in solid contradiction to the states interpretation of events, and if a jury believed the

Hoffmans' recollections it had to vote for acquittal.

Vi Hoffmans testimony was imbued with a powerful emotional appeal that transcended any judgment concerning her veracity. The hurt was plain and visible, and whether her tale was truth or mendacity her pain was undeniable. Robert Hoffmans testimony did not detract from the sympathy generated by his wife, but it sobered things.

What became clear was that the parents were not offering a different perspective on the evidence and circumstances; they were presenting an alibi. It was not a mixture of what the prosecution had argued and what the prosecution may have overlooked or ignored; it was an alibi that implied that Davies had lied, that John Hunt had lied, that Berge's blood in the snowbank was a lie or a frame-up. Nothing of what the parents had said addressed the insurance policies or the marriage license or the chemicals from Laabs or Ken Curtiss decisive testimony. None of these things were explained away by what the Hoffmans suggested to be true.

Perhaps more profound than any abstraction was how Barbaras parents sounded. Often the same words, the same phrases were repeated, as though they'd been reading from a script. While it was not unusual for two people married for over thirty-one years to seem similar in their choice of words, they sometimes responded to the same question from Eisenberg with identical phrases, parroting each other, as if the answer had been discussed and rehearsed. Robert Hoffman, particularly, was stiff and devoid of spontaneity. It seemed he had weighed what he wanted to say and said it.

The reaction of a listener to Vi Hoffman s testimony was to accept it without question. But when Robert Hoffman had stepped down from the stand, the reaction was to wonder about collusion. The alibi was too neat. It seemed tailored to cover as broad an area as possible. It contained too many coincidences.

The surprise expert witness, whom Eisenberg had bragged would soundly repudiate Professor Deibls testi-

mony, was called next. Joseph Robinson was a professor of pharmacy at a Canadian university. His effect was less than devastating. He reviewed the Laabs items and Deibls testimony and disagreed with a single, minor aspect of what the prosecution witness had said. The compounds and equipment ordered from Laabs indicated the growth of an anaerobic organism, such as botulin, was intended. Nonetheless, other bacteria could have been cultivated. This was merely a restatement of what the microbiology professor had contended, with slightly different emphasis.

On cross-examination Robinson admitted that he could not and would not refute Deibl's opinion. Hence the surprise witness surprised no one, except perhaps the defense.

With Robinson the defense rested its case.

The prosecution had presented nearly seventy witnesses and two hundred exhibits in documenting its charges against Barbara Hoffman. Eisenberg had called fewer than a dozen witnesses in rebuttal.

Court adjourned at 2:00 p.m. Thursday afternoon. Closing arguments were scheduled for the next morning.

— 13 —

Each afternoon when court had adjourned, John Burr poured down a couple of draft beers at the Pinckney Street Hideaway, then sauntered up to his office for a few minutes alone, where he could consolidate his thoughts and peruse the mail and the days messages and memos.

Throughout the trial the DAs switchboard had been deluged with calls regarding the Hoffman affair. People who followed the drama on TV phoned in to commend or criticize or question Burr, and the frumpy prosecutor took immense delight in reading the viewers' comments. It wasn't unusual to receive forty or fifty calls a day from the fascinated public. Most citizens suspected that Barbara was guilty, and most predicted she'd win acquittal, either

due to lack of evidence to prove her guilty beyond reasonable doubt or because of Eisenbergs guile. Often the caller proffered suggestions or advice.

A woman from nearby Waunakee who had watched every minute of the proceedings developed a theory concerning the cyanide deaths. She hypothesized that Barbara had attempted to disguise the chemical element to the killings, which was why the bathroom fans were left running and the air conditioner fans were switched on in the middle of winter. Cyanide can have an odor, and the circulation would disperse it. The temperature in both the Hoffman and Davies apartments was extremely high, almost ten degrees above what could be considered normal, and the humid environment would aid the body's deterioration and make the toxin harder to detect. Traces of cyanide would disperse more quickly in a warmer setting. The police had already surmised this fact, but the woman from Waunakee had a slant on the Davies murder that none of the investigators had fathomed. Maybe it hadn't been bath water that Daviess corpse had been placed in, but dry ice. Police found the body forty-eight hours after expiration, yet the water in the tub was lukewarm. Dry ice would melt slowly, stay relatively warm, and allow the body to remain warm, thus hastening the absorption of cyanide and making its discovery more difficult.

The ingenuity of the woman's theory intrigued Burr. The practicality of proving it and introducing it into court was another matter.

Not every caller was this clever; however, the majority of calls indicated that folks watched and listened closely. On Thursday afternoon another armchair detective who had been loyally tuned in to the trial noticed a curious omission in Vi Hoffman's testimony. Both Vi Hoffman and her husband had claimed they drove from Madison to Chicago on Easter Sunday, March 26, 1978, at about 6:00 p.m. The trip would have been virtually impossible, the caller noted, because of adverse weather conditions.

That Easter Sunday the area was battered by a tremendous ice storm. O'Hare Airport closed for days, and

Interstate 90, which connected Madison and Chicago, was also closed as a result of the severe weather. Anyone in Madison would never have tried such a drive. Gas stations closed. Hardly anyone ventured out. Yet the Hoffmans neglected to mention what should have been the most remarkable aspect of the weekend—the drive home.

If a TV viewer recalled the storm, why hadn't anyone in authority investigated the possibility? Burr cussed Lulling. The detective had retired before the Davies homicide investigation was under way, and although Burr personally despised the man, the weather was one of those tiny details that others overlook and that Lulling, in his tedious, compulsive, irritating manner, would have examined.

On Thursday, when the defense rested without summoning Barbara Hoffman to the witness stand, the noise heard from the prosecution team was a surprising sigh of relief. Surprising, quipped a reporter, because they seemed grateful that she hadn't been called to testify.

Prior to the trial and again before the defense presented its case, Burr and Spencer had debated Eisenberg's possible strategies and made the assumption that he would not place Barbara Hoffman on the stand. Consequently the prosecution had spent no effort readying a cross-examination, devoting its time instead to the myriad details and complexities that seem endless in a trial of such duration and magnitude. If Eisenberg had called her as a witness, the prosecution team would have been embarrassed by its lack of preparation, ineffectual in its rebuttal, and outmaneuvered by the wily defense lawyer.

Soliciting testimony from Barbara Hoffman would have been a precarious task, fraught with perilous ramifications. Eisenberg had faced a nasty dilemma. Obviously there was an avalanche of questions Barbara would have had to endure if she were exposed to a strenuous cross-examination. The wrong answers or the wrong appearance might bury her deeper than the prosecutions six days of circumstantial evidence. But often a jury wants the chance to hear the defendant tell her own story, deny the

charges, and assert her innocence. Barbaras unflappable handling of the DA's questions and her firm denial of murdering Berge and Davies might have been the excuse the jury needed to grant an acquittal.

Was Barbara capable of the performance? Her demeanor during the trial was unshaken, the epitome of self-containment and cool. What no one except her lawyer realized, however, was the cost of her detachment, the supreme energy that was invested to deflect the pressure and to create a small, silent space of quietude and safety. No one except Eisenberg comprehended her fragility. His decision to withhold her direct testimony was maybe a greater relief to Barbara Hoffman than it was to John Burr.

The press and the gallery discussed Eisenbergs decision, arguing its wisdom and its folly like bleacher bums second-guessing a baseball managers choice to stick with a starting pitcher in a bases-loaded jam. Similar to baseball fans, neither the press nor the spectators knew all the variables. Still, it didn't keep them from their opinions.

John Burr burped from two quick draft beers. He plopped the mail he was reading idly onto a stack of memos and called home. He had seen his family only once in the last two weeks, and when one of the kids answered, Burr felt like a stranger. His wife worked at sounding cheerful, but the exasperation in her voice could not be disguised. He told her that Friday was closing arguments and, no matter what happened, tomorrow night he'd be sleeping at home.

14

Perhaps it was the heat, perhaps it was the pressure; whatever the cause, John Burrs initial closing argument faltered.

It was Friday, June 27th. Judge Torphy allotted the prosecution one and a half hours for its closing. The de-

fense was permitted three hours for final argument, and the prosecution was given one and a half hours for rebuttal. The courtroom seemed more crowded than before. The air-conditioning was inadequate, and the smell of bodies and tension permeated the chambers, oozed into the hallway, and infected those who jammed around the TV monitors for a glimpse of the last days proceedings.

Burr stumbled badly.

'The purpose of a closing argument/ 7 he said, and then he hesitated in mid-sentence, as if uncertain where to

go-

'There are a number of closing arguments, if you will. Someone once said that all lawyers are frustrated actors. I'm not persuaded that the purpose of a closing argument is assisted by standing up here and yelling and screaming and crying as some people have done on occasion/ 7

He reviewed the case for the jury, beginning with Daviess appearance at police headquarters on Christmas Day, but his chronology lurched forward and backward like the posture of a punch-drunk boxer. He stood at a podium, stiff and uncertain. He blundered over words and ideas, searching for the appropriate phrase or the precise remark, which persisted in eluding him.

There was an abundance of evidence to sort and coordinate. Testimony from the first two days of the trial seemed light-years distant, and Burr sought to remind the jury of all that it had heard. He scrambled.

". . . some people have said what happens today is like mixing all the facts you got for the last seven or eight days, combine them with the law, and a verdict comes therefrom/ 7

There was so much to cram in. Dates were tossed to the jury with vague reference to their significance. Insurance policies, bank accounts, UPS delivery dates were jumbled. Burr got lost in the summary, got entangled in the mass exhibits and testimony, and was unable to hack a clear path. Time flitted away. He started naming witnesses as if reciting the roster of a baseball team.

"Mr. Lowell was here—he is the gentleman who has control over Mr. Berge's insurance records. Mr. Raymond Petersen brought exhibit fifteen, which is some phone records. . . . Witness number seven, as you know, was William Stelling. . . . Witness number nine on Thursday was Detective Kenneth Couture. The next witness was Jon Sippl, detective—I believe the last witness that morning. Second to last. No, the last witness."

The jury appeared confused.

After an hour and a half Burr sat down, bewildered by his terrible performance. The biggest case of his career, and the lights and the heat and the pressure had unraveled him.

"I blew it," he muttered to Chris Spencer, who couldn't disagree.

If Burr ended in a muddle, Eisenberg began grandiloquently. "I have been tempted in this one to just say, I surrender, I quit, I give up. I mean, after all, you have heard all the facts from Mr. Burr, and obviously what Mr. Burr has told you is correct, and therefore, why should I say anything to you? But maybe I better not surrender.

"I have been practicing law for twenty-four years, protecting citizens. I protect them from overzealous policemen and overanxious district attorneys who charge too fast without sufficient evidence. I cry. I cry for justice."

Using a bell as a metaphor for the presumption of innocence that surrounded his client, Eisenberg explained to the jury burden of proof and reasonable doubt. The bell can be dented and cracked by what the prosecution presents, he said, but according to the law the bell must be shattered completely for the defendant to be judged guilty.

He pontificated on justice, quoting Pope Paul VI and Albert Schweitzer. He boasted that the fate of Barbara Hoffman, "that little girl over there, has been in my hands for over two-and-a-half years."

Then Eisenberg ripped into the states case. Why was no blood discovered in the apartment or in the bathroom? Why was there no hair?

"Officer Robert Doyle went to the apartment on December 25th. He was looking for, quotes—usable evidence—unquotes. 'I found nothing/ Ted Oasen, a Dane County sheriff, went back on December 27th with another search warrant, and they went back with ultraviolet light and with Hemastix. They found no blood. Everything that they found in that apartment was negative/ 7

There was no indication and no evidence whatsoever that Harry Berge had been in Barbaras apartment on the night he died.

Why was no blood discovered in the snowbank behind the apartment building the first three times the police checked? Was it because Chuck Lulling had planted the blood that was miraculously found in the snowbank on January 19th, the day after Barbaras arrest?

"I don't like Chuck Lulling. I think he's a liar, and I have got evidence of that, and you have got more evidence of that. Is it inconceivable that this overzealous policeman, about to retire, on his last case . . . wants to get his man? And in this case his lady? Is it inconceivable that Mr. Lulling went back there with a little blood and planted it? I'm not saying he did it. But you see how plausible that is."

If it took two officers to haul Berge's body onto a stretcher, how could "that frail little girl over there" have transported him down three flights of stairs? If it took two officers to pull Davies out of the bathtub, how could Barbara have put him there? If she was under surveillance when she returned to Madison on December 26th, how did she move Berge s car around so it wasn't located until a week later? If Barbara had killed Harry Berge, why did she stay in town for a month waiting to be arrested? Why didn't she leave Madison?

Eisenberg stalked the courtroom, leonine, ferocious.

It wasn't Linda Millar who put her name on the deed of Harry Berge's property, he bellowed; it was Berge himself. No one coerced him. Kenneth Buhrow explained the different ways for Berge to leave his property, and Berge chose joint tenancy. No one else was there. Berge was

under no pressure. It was a voluntary decision.

He quoted Dr. Slavik's testimony: "Gerald Davies told me his girlfriend had just been charged with first-degree murder and she didn't do it."

Eisenberg acknowledged that he'd known about the Hoffmans' visits to their daughter on the Christmas and Easter weekends when the alleged murders took place, and he acknowledged withholding that information from the police. He claimed to the jury that if the police had been notified they simply would have changed the dates of the deaths and thus nullified the parents 7 crucial testimony.

Again he blasted Lulling. "Why didn't Lulling, or any other officer, knowing that Barbara Hoffman was in Illinois on Christmas, ever go and see Mr. and Mrs. Hoffman until June 2, 1980, twenty-five days ago? Why didn't Lulling, the great policeman, go and say 'Mama, Daddy, how long has Barbara been staying here?' Is that good police work?"

Next he directed his tirade at John Hunt. Certainly Hunt did not know what he saw the early morning of December 23rd. Berge's car was black over white; the car Robert Hoffman drove was black over bronze. At 5:15 a.m. it was pitch-black outside and the only illumination in the parking lot came from a seventy-five-watt light bulb on a neighboring building. Hunt heard a car door slam and glanced out the window. "What's the significance of a door or a trunk slamming? There is no evidence that Mr. Berge was ever put in a trunk or ever put in his own car. What's the significance?" Hunt was sleepy, Eisenberg insisted; it was dark, and all he saw were shadows.

Furthermore, if Barbara did have some secret to conceal, why would she conduct her mission at 5:00 or 6:00 a.m.? She had resided at 638 State Street for years. She was aware that John Hunt rose early. She knew he did his janitorial duties every day at that time. She knew that if she was up and about it would not be unlikely for her to bump into him as he completed his chores.

The defense lawyer shifted his thrust and slashed at the prosecution's version of Daviess mysterious death.

"Jealousy. Murder. Suicide. All the facts point to it. All the circumstantial evidence/ 7 He reminded the jury that Daviess own words, in the letter penned prior to his death, exonerated Barbara. No one had seen Barbara Hoffman enter or leave Daviess residence that weekend. No one had heard any argument or struggle or commotion from apartment 7. The drapes were left open, and the lights were on. Daviess bedroom slippers were next to the tub. "Now, did Miss Hoffman, who the prosecution would want you to believe is a chemist and a real estate person [co-owner of Berges Stoughton property], is she also an alchemist? Is she also a magician? Is she able to change herself into a phantom, into an invisible person, and drift into that apartment and commit the murder of Gerald Davies? After they contacted the buses, the cabs, the mailmen . . . Nobody ever saw Barbara."

Eisenberg reminded the jury of Ken Curtiss notorious livelihood, and he lambasted the vice kings testimony.

The defense counsel roamed the courtroom, delighted to have one final and unimpeded blast at Curtis s character. He harangued about the plea bargain agreement between Curtis and Cerro and the DAs office and implied that it was a collusion by adversarial parties, each with something to gain, a collusion that made Barbara Hoffman a powerless victim of self-serving men. Why had it been eight months after Berges death before Curtis had come forward with his information? Had he delayed in order to invent a story that would fit the known facts?

The Laabs materials received a perfunctory mention and dismissal. Professor Deibls analysis and opinion, however, Eisenberg fiercly criticized. He reminded the jury that the cyanide had not been sent to Barbara Hoffman but to Jerry Davies, who signed for it and paid for it and applied for a passport the day after receiving it.

Was that a mere coincidence? Or was it a clear indication that Davies intended to kill his rival for Barbaras affections and then flee? Davies couldn't bring himself to leave Barbara, and he couldn't resolve the trouble he had wrought. Driven by jealousy and fear, he'd killed Harry