Winter of frozen dreams (22 page)

'The court concludes that the charges are properly joined and need not be severed. A great bulk of the evidence introducible in the 'Berge 7 case is arguably introduc-ible in the 'Davies 7 case to show motive, intent, and/or plan (i.e., the beneficiary of insurance evidence, complications in body moving, Davies prelim, cause of death)/ 7

The ruling was a severe setback for the defense, and Eisenberg was bitterly disappointed. Yet he still felt confident that he could win an acquittal for Hoffman on both charges.

A trial date was set for mid-June.

— 40 —

Despite the two-and-a-half years they'd had to assemble their attack, Doyle and Burr and Spencer were less than

confident. Their key witness had been Davies, and he was dead. They had no substantial piece of evidence to intractably link Barbara Hoffman to his murder, nothing tangible such as a fingerprint, such as a neighbor seeing her enter or depart from Daviess apartment on the fatal Easter weekend. They had an incriminating morass of circumstantial evidence, but their pivotal witness now was Ken Curtis, a massage parlor owner, a thug whose testimony had been elicited through a plea bargain deal. And even Curtis had never claimed that Barbara Hoffman had intended to kill anyone with cyanide. Botulism was what she was going to use, Curtis said, but there were no indications of botulism anywhere else in the case. Consequently the prosecution team continued to dig, probing the evidence already collected. Had something been missed or overlooked?

Material from Berge's home in Stoughton and from Daviess apartment in Madison had been gathered and stored in the basement of the City-County Building. Burr and Spencer dug through a carton of Daviess personal papers that had been confiscated but not considered applicable as evidence. They knew that Jerry Davies, like Harry Berge, was a creature of compulsive habit. Chris Spencer fingered through Daviess checkbook, and the pattern that emerged was as routine as his life.

The entries were identical from month to month— payments for rent, utilities, telephone, car loan, newspaper delivery. Six to ten checks had been written each month, with miscellaneous checks to Pizza Hut or Kohl's or for Badger hockey tickets. The regularity astonished Spencer, and he wondered if his own existence would appear so mundane if viewed through his monthly bank withdrawals. At last a name repeated that was unfamiliar—Laabs. No further explanation or description.

Laabs—March 1977, $71.32. Laabs—again in March, then twice in April, for varying amounts. May showed other entries for Laabs. There was one entry for June, and then the name didn't appear again in Daviess checkbook. What was the flurry of payments for? Was it money to a friend? But who lends a friend $26.66?

"Ever hear of a place called Laabs?" Spencer asked John Burr.

The senior prosecutor shook his head and studied the anomaly in Daviess checking account. It was like a splatter of blips on an empty radar screen. The two lawyers scrambled upstairs and searched a Madison telephone directory. No listing in the white or the yellow pages. A secretary fetched a Milwaukee County phone book. Spencer volunteered to trot over to the public library, where phone directories for Wisconsin and most major U.S. cities were kept current. However, Milwaukee held an answer.

Laabs was listed. It was a chemical supply and equipment company.

Spencer immediately dialed the number and asked if it was possible to check on an order that was a couple years old. He was told to call back, for it would take time to retrieve the old orders and invoices, but yes, the records were still available and the company would cooperate. When Spencer called back at ten minutes to five that afternoon, nothing had been found.

Neither Burr, Spencer, nor Doyle rested well that night. Chances were that the Laabs thing was a fluke and another blind alley. Jury selection commenced in less than two weeks. Their case was a patchwork of circumstantial evidence, and it was easier to discern threads that frayed and unraveled than the weave that stitched the pattern together.

The next morning Spencer took a call from Milwaukee.

A large order had been placed with Laabs late in February 1977. It included beakers, test tubes, syringes, and watch glasses, among many other things. Part of the order was delivered to apartment 306, 638 State Street, in three separate shipments. The remaining items, which had been back-ordered, were sent to apartment 7, 2305 South Park Street, in four separate shipments. All items were sent COD, paid for by check by Gerald T Davies, and

posted through United Parcel Service—except for one special shipment.

Small quantities of sodium cyanide and potassium cyanide had been ordered. Since these chemicals were poisons—the UPS did not handle what were considered Class B poisons—the cyanides were sent by a commercial trucker, Motor Transport Company, delivered to apartment 7, 2305 South Park Street, and were signed and paid for by Jerry Davies.

The salesman who took the original order told Spencer that the order had been placed by a woman over the telephone and that she'd called back only once, and that was to change the shipping address.

Spencer could not contain his excitement. He and Burr conferred with Doyle. A list of the materials ordered was being sent from Laabs the same afternoon. UPS and Motor Transport would be contacted, and their receipt forms would be confiscated for evidence. Eisenberg would have to be notified under the states disclosure laws.

Instead of the inference that Barbara Hoffman could have pilfered cyanide from the university, they now had solid evidence that she had had the murder weapon delivered to Madison. The irony was that Jerry Davies had signed and paid for the poison that had killed him.

PART III

A Judgment

of Sorts

For the two-and-a-half years since the initial charge of murder had been lodged against her, Barbara Hoffman had been free on bail. Her residence remained 638 State Street, apartment 306. She inhabited the same whitewashed rooms where Ken Curtis had used her infatuation to gain sexual favors on an idle summer afternoon, where Jerry Davies had slept, dreaming of a future filled with love and marital bliss, where Harry Berge had asphyxiated and died due to cyanide poisoning. For the past two years Barbara had been employed by the state of Wisconsin as a limited-term clerical worker. She had audited psychology courses at the university. The fact that she was only one semester shy of a bachelor of science degree in biochemistry apparently had little relevance for her.

On June 15, 1980, the day before jury selection for her trial was to begin, Barbara celebrated her twenty-eighth birthday.

On June 16, 1980, jury selection for the Barbara Hoffman murder trial began. Defense attorney Eisenberg was buoyed by the extensive delay in bringing the case to court.

"Do you realize there are people in Madison who don't even know who Barbara Hoffman is?" he commented gleefully to a reporter.

Judge Michael Torphy informed the jury pool that those selected would confront an enormous task. The court expected over a hundred witnesses, perhaps two hundred exhibits of evidence, and a trial that might last three weeks, during which time they would be sequestered.

The prosecution did not have a rigid concept of the perfect juror. Burr believed an adept lawyers intuition was the best guide to jury selection. Because of the morass of circumstantial evidence that represented the bulk of their case, Burr and Spencer wanted people with common sense, people who seemed to have the capacity and intelligence to endure a lengthy trial and remember the knots of evidence and how they were connected. Each potential juror was considered individually. People with an active religious affiliation were preferred.

On the matter of Barbaras background, would a juror view a woman who worked in a massage parlor as a whore, or as a little girl corrupted and led astray, or as a mixed-up college kid who needed money? It was a volatile issue, and rather than guess at a jurors reaction Burr and Spencer decided to base their decision on other factors. They wished for an older jury, though they didn't want anyone with a child Barbaras age, fearing a sympathetic response to Barbaras parents, who were scheduled to testify. They also didn't want a person whose opinion had been affected by the barrage of pretrial publicity.

"When was the last time you read or heard anything about this case?" was Burrs constant refrain.

If the prosecution approached jury selection in a miscellaneous manner, the defense used stricter guidelines in ascertaining who was acceptable.

"I want a smart, sophisticated, liberal juror," Eisen-berg told reporters at the end of the first days proceedings. "One who realizes that massage parlors are a fact of life yet is sensitive enough to know that people can still form real relationships in that atmosphere."

He wanted people whose opinion would not be swayed by the testimony of authority figures. Eisenberg

asked potential jurors whether they would place more credence on a police officers word than on the testimony of any other witness. Did they understand the laws presumption of innocence? Did they understand that an allegation was not a verdict of guilty issued by the police? Would they be offended by strong language used in the heat and fury of a court battle?

Eisenberg had assembled a composite of the ideal juror. He employed the individual voir dire extensively, probing religious habits, television preferences, and political inclinations in an effort to discover who matched his model. He asked what social functions people attended, what newspapers or magazines they subscribed to, what hobbies they enjoyed. He was curious as to which of the following people—President Eisenhower, President Kennedy, Martin Luther King, Jr., or Ralph Nader—potential jurors admired the most. Eisenberg wanted a juror with progressive leanings. Eisenhower people would be too conservative to understand Barbara Hoffman. People who chose Kennedy would be more open-minded, more liberal about social and sexual mores. King and Nader admirers, he figured, might be more willing to question authority and would not be awed by the testimony of cops and state experts that the prosecution would present.

Unlike the prosecution, Eisenberg examined people s attitude toward massage parlors. "Do you believe a person who works in a massage parlor is either a whore or a prostitute?" he posed. Should massage parlors be shut down? Should consenting adults be left alone to do what they wished?

Appearance and occupation were important indicators to the defense. Eisenberg wanted Barbara Hoffman judged by hip sophisticates, minority people, blue-collar workers, young adults with an orientation toward the drug culture. But in a city with a black population of less than 3 percent, where the work force is predominantly clerical and service-related, dominated by the university and the state government, such a mix would have been difficult to concoct.

Consequently Eisenberg relied on experience and savvy to determine the type of juror he desired. No sociological surveys were undertaken, nor were psychologists hired to scrutinize the potential jurors. Such tools were expensive and often wasteful, and like Burr, Eisenberg felt a good attorney should follow his instincts.

The selection process was completed in two-and-a-half days, and on the early afternoon of June 18th a jury was seated. It consisted of seven men and five women, the oldest fifty-seven, the youngest eighteen, with a mean age of thirty-four years. All jurors claimed to be regular churchgoers, though none belonged to any fundamentalist group. Barbara Hoffman's guilt or innocence before the law would be decided by a student, a maintenance man, an engineer, a manager of a local Farm and Fleet store, a secretary, a security guard, an art teacher, a typist, a postal clerk, a road crewman, a nursery gardener, and a housewife.

Both prosecution and defense claimed to be satisfied with whom they had chosen.

The day before jury selection commenced, Burr and Spencer moved into a motel near the capitol square in order to devote their full energies to the trial and avoid the inevitable distractions of home. This created a strain on both families.

Already the lawyers had been working long days in preparation, and the small irritations—the late dinners, the early departures, the absence when a kid was sick or when the kitchen sink didn't drain—were having a cumulative effect. Spencer had two youngsters, and his active participation in their upbringing allowed his wife a reprieve from constant child-care duties. Now that time was forfeited.

The Burr home had welcomed its third child just

three months previously. The responsibilities of parenthood were dumped on his wife and his mother because of Burrs intense commitment to the case. Procuring groceries, changing diapers, getting the eldest to soccer practice became a test of fortitude and nerves. For another three weeks to a month, for however long it took, Judy Burr had to maintain the kids, the household, and her sanity in lieu of her husbands appearance.

Both lawyers spoke to their families each night on the telephone, and yet they felt exiled and suffered pangs of separation despite their absorption with the prosecution of Barbara Hoffman.

Whatever the hardships, Burr considered the semi-isolation a necessity. The case against Barbara Hoffman was sprawling, complex, intricate. It required an intense attention to detail and a prolonged concentration on a multiplicity of minor elements. Hoffman had been daring and ingenious.

She had not left a trail of fingerprints. No one had witnessed either victim alive and in her company on the day of his death. The method of killing, cyanide, had been discovered, but no traces of the chemical had been found in her possession or at her residence. There was no solid proof that she had ever purchased or pilfered the lethal dosage. Hard evidence against her was severely lacking. What the prosecution had gathered was an overwhelming quantity of fragments, scattered pieces that when rearranged and properly reassembled could portray nothing other than her obvious guilt.

Nevertheless the coordination and presentation of evidence and testimony and the soldering of these fragments into a solid case were not the sole pressures on Spencer and Burr. The drama contained sundry dimensions.