Winter of frozen dreams (27 page)

for Curtis. His firm had represented Curtis over the years. Eisenberg's acerbic tongue would lash and bait and infuriate Curtis, who didn't possess the intellect to fight back. Eisenberg would reveal the sordid details of his relationship with Hoffman, accuse him of retaliation for Barbaras insubordination, accuse him of attempting to frighten and intimidate a potential business rival.

It could get vicious and brutal. Curtis's rumored violence toward women might have a peripheral relevance. Would he protect these intimate details and let his memory go fuzzy? Would he conceal his character and lose his credibility? The prosecution had plenty of trepidation and no choice. Curtis was summoned to the stand.

Burr chose not to hide Curtis's background. The plea bargain arrangement and the ownership of Jans Health Spa were discussed openly and succinctly. The questioning moved immediately to a conversation Curtis had had with Barbara Hoffman in late March or early April 1977, in which he'd mentioned to her that "I was aware of a plot to kill a young man for $750,000 in life insurance." He also noticed a chalkboard, on which the words passport and marriage license were written and checked off.

Two days later, in another conversation at her apartment, "Miss Hoffman admitted to me that she was going to kill a man/' And she told him of the plot of marriage and Mexico and botulism. She never did tell Curtis the identity of her intended victim, except that he worked at the U.W. and that she'd met him at Jans Health Spa.

When Don Eisenberg rose to cross-examine, Ken Curtis didn't flinch.

Was it true, boomed Eisenberg, that Curtis made his living from vice, corruption, gambling, massage parlors, and using people?

Curtis denied it.

Eisenberg acted incredulous. What was Curtis's connection to Jan's Health Spa? And the Rising Sun? And Cheri's? And the Geisha House?

Curtis acknowledged that he had an interest in three or four massage parlors, which provided the primary

source of his income. He smiled, almost slyly, and leaned back in his chair. "Yes, I guess it could be called vice," he said.

Eisenberg explored the history of Curtiss partnership and friendship with Sam Cerro. His questions were swift and incisive. He challenged the deal with the district attorney, criticizing its ethicality, criticizing Curtiss motives.

Why hadn't he reported what he knew to police when he'd first learned of Berge's death? Curtis said he was not immediately aware of the connections between Berge and Davies and Hoffman. Why did three weeks pass before his lawyer phoned the DA? It took time, Curtis replied, to understand the significance of what he knew.

In a courtroom where the air-conditioning faltered under the assault of a ninety-degree day, where spectators fanned themselves and perspiration drops blotched press corps notebooks, where witnesses fidgeted uncomfortably, their underarms dark with sweat, where pebbles of sweat rimmed the shore of Judge Torphy s broad, receding forehead and the heat seemed to wilt his mustache, Eisenberg clamored and growled like an overheated boiler furnace. His silk suit rippled with dampness as he gesticulated. His words were charged, his demeanor pugnacious. A white cotton handkerchief sopped the wetness from his brow.

Eisenberg fumed about Curtiss story, attacked it as a fabrication. Again he emphasized the long delay, almost eight months, before Curtis had informed authorities of what he claimed to know, and then only after a mutually beneficial exchange had been agreed on between the DA's office and Cerro. He was not fulfilling a civic responsibility by testifying against Miss Hoffman; he was completing his part of a sleazy bargain, behaving opportunistically by exploiting a tragic circumstance for his own advantage. What did Curtiss testimony buy for his friend, who had been convicted of attempting to purchase two kilos of cocaine?

Cerro had received a six-month sentence and probation, Curtis replied.

"What was the maximum penalty?" asked Eisenberg.

Curtis shrugged.

"Wasn't the maximum penalty fifteen years in prison and $45,000 in fines?"

The witness shrugged again. He looked bored.

Eisenberg raged at Curtiss silence. "What was Sam Cerro's maximum possible sentence?" he demanded.

Curtis squinted, as if taking aim. "You should know; you were his attorney."

The boiler blew a gasket. Eisenberg disavowed any knowledge of the plea bargain, stating emphatically that he had dropped Cerro as a client.

"No," Ken Curtis corrected him. "You were fired."

No groan was audible, but the breath had been knocked out of Eisenberg. Flustered, he grabbed a Wisconsin statute book and searched for the sentence Cerro might have served had it not been for Curtiss deal with the DA. He howled as he paged through the tome.

Nobody fired Don Eisenberg, and nobody embarrassed him in court. He read from the statute book, barking out numbers, totaling up the maximum penalty, but his howling was like a whine, like a shrill stream of hot air escaping through a leak in its cauldron.

Eisenberg reeled. The cross-examination suddenly had lost its force. The lawyer barked in an effort to recover, but his questions lacked sting. His pacing and pattern had been disrupted.

Eisenberg resorted to another assault on the witness's character. "Haven't you been charged with reckless use of a weapon and battery? Whom did you batter?" Eisenberg bellowed, bringing the prosecutions immediate objection, which was sustained.

The next tactic was to discredit the mystery witness. A friend of Curtis had told him of Hoffman's alleged plot, which had prompted Curtis to intervene. Where was this mystery person now? Why had he not come forward? What did he fear?

The man had fled the state to avoid being called as a

witness, Curtis replied. And Curtis had no idea why, except that he'd wanted to elude the entanglement.

On redirect John Burr defused the issue. He asked Curtis if he knew what lawyer represented the mystery witness.

"Don Eisenberg," Curtis said.

Curtis stepped down and strode through the heat and tension that surrounded him. It had been a gritty performance. His character had been scratched, but his testimony had not been tarnished. He'd absorbed the force of Eisenberg's rage and kicked it back at him. He appeared delighted in his public admission that he made his livelihood from vice. His insolence had protected him from deeper scrutiny and had protected his testimony against Barbara Hoffman.

The next witnesses corroborated that the items Curtis had seen written on the chalkboard were, indeed, obtained. A copy of Daviess passport application, dated May 19, 1977, was entered into the record. An appointment calendar, which reserved a marriage date of April 22, 1977, for Barbara Hoffman and Gerald Davies, was also placed in exhibit.

What became clear as the trial progressed was the depth of isolation that enveloped Barbara Hoffman. She rarely murmured a "good morning" to anyone other than her lawyer. A specimen, a curiosity, a beauteous mystery to the throngs of spectators, she was utterly alone. No sympathetic smiles, no words of encouragement from anyone. If she had friends, they were not in attendance, nor was her family. Neither her parents, who lived a three-hour drive away in Park Ridge, nor her sisters bothered to share her burden and ease the torment. Whether due to her wishes or due to abandonment, Barbara endured the tedium and trauma of the trial with only Don Eisenberg to lend her consolation.

Each noon recess Barbara retreated to the coffee shop in the basement of the courthouse for her lunch, which she ate amid the glances and whispers of the other patrons, some of whom were detectives that had worked on her case; or she paced to the capitol square, chose an empty bench, and ate a meal she had prepared at home and lugged in her shoulder bag. It created a haunting picture: Barbara perched like a bird on a stone bench, hoping to become invisible among the state capital's endless pedestrian traffic, nibbling on rice cakes or fruit, sipping tea, marigolds and begonias in resonant bloom about her.

Barbara grew thinner as the trial wore on. Her 110 pounds seemed to shrink on her 5'6" frame, and slender looked skinny. She used a minimum of cosmetics, and soon her face was narrow and gaunt.

Though she looked anorexic, Barbara was extremely self-possessed. If any of the testimony had pricked a painful memory, she had not expressed it. Her demeanor was alert, cool, stoic. She made copious notes during particular testimony, or she sat passive and detached, as if lulled into a trance by a boring television program.

What emerged was a strange serenity that accompanied her loneliness, a strange composure that centered her isolation.

— 10 —

Tuesday, June 24th, was long and mundane and ended in a feisty confrontation between Eisenberg and Chris Spencer.

The discovery of the laboratory equipment and chemicals purchased from Laabs, Inc., of Milwaukee was presented. Tom Volkman, the salesperson who had taken the original order, told the jury that the materials had been ordered by phone by a female voice. "It was a large order, which was unusual/ 7 and delivery was spread out over a half dozen or more shipments because items had to be back-ordered and shipped as they became available.

The receipts were signed by "J. Davies" or "Jerry Davies" and paid for COD by a check drawn on Jerry Daviess account. The UPS receipt books and bills of lading and canceled checks were entered as evidence.

The turmoil erupted in the afternoon.

Barbara Hoffman's academic career was examined. She was termed an excellent student, one who rarely asked questions, "because she knew all the answers." She had chosen biochemistry as her major field of study, with an ultimate goal of medical school. Her work in the sciences, especially biochemistry, was strong, and she earned an unblemished record of As.

Professor David Nelson testified that she had been a student in a biochemistry course he'd taught in 1974 in which cyanide was discussed. Professor Robert Deibl, who was a specialist in food microbiology, particularly food poisoning, stated that Barbara was a student in a class he taught that included a section on food poisoning. Eisen-berg strenuously objected to the relevancy of the testimony. Neither professor had proof that Miss Hoffman had been in attendance on the days cyanide was discussed, and if she had been, so what? Torphy overruled and allowed Spencer to proceed with the questioning.

Spencer and Eisenberg had battled in court previously, with the defense lawyer victorious. Spencer was young, a couple years out of law school, and not entirely comfortable with the bang and tussle of criminal law. Eisenberg sensed this hesitation. He pounced on any flicker of weakness in an opponent and exploited it.

The list of compounds and equipment ordered from Laabs was discussed by Professor Deibl under Spencers direction. The academician stated that a number of the compounds could be used to grow anaerobic organisms such as botulin, and Eisenberg immediately protested.

The compounds could be used to grow something other than botulin, Eisenberg said. Deibl's conclusion was sheer speculation and should be stricken from the record.

Spencer rephrased the line of questioning, but again the defense lawyer attacked. This line of inquiry was irrelevant, he barked.

Spencer altered his approach once more, stumbled, and was stymied by Eisenbergs vehement interruptions. Torphy allowed the scuffle to continue. Spencer blustered, hopelessly entangled, and the defense lawyer pressured him relentlessly. Eisenberg wanted Deibl's testimony tossed out. It was misleading, irrelevant, and improper, and Spencer muttered a feeble defense for what he wished to prove.

Finally Judge Torphy agreed with Eisenberg. He ruled that Professor Deibls entire testimony be erased from the record, and the jury was instructed to disregard everything Deibl had said.

The rage with Deibl wasn't over. That night the prosecution contacted him and asked if he'd be willing to testify again, with Burr conducting the examination. Deibl responded that he felt his judgment regarding the Laabs stuff was relevant and important. The prosecution agreed. Their case was close to the end, and they wanted Deibls opinion on the record.

The next day the prosecution reintroduced the microbiology professor as a witness. Eisenberg was furious in his objection. Burr argued that the information Deibl had was related to the statements of a previous witness—Ken Curtis—that Barbara Hoffman had plotted to kill someone with botulism.

Torphy ruled for the prosecution. The testimony was admissible evidence to demonstrate Hoffman's state of mind and intent.

Deibl described the Laabs order to the jury: pipettes, rubber tubing, mouthpiece, calcium carbonate, one-quarter pound of peptone, beakers, a thermometer, pH paper, test tubes, clamps, support rings, a graduated cylinder, yeast extract, dextrose, glassine paper, watch glasses, cyanide, and twenty-five syringes. Essentially the materials constituted a mini-laboratory. All the ingredients necessary to grow botulin were present in the Laabs deliveries, and Deibl recited step by step precisely how it could be done. Only two of the items ordered had no use in the process: cyanide and syringes.

Eisenberg constantly interrupted the testimony, ha-

rassing Burr and Deibl, but his irate outbursts were without effect except to draw reprimands from the bench.

Cross-examination was futile. The defense hammered away at the fact that the Laabs items could be used to grow things other than botulism.

Yes, Deibl conceded, other bacteria.

"And isn't it further true," pushed Eisenberg, "that some of the items on those invoices before you would not be used to culture botulism or any other kind of bacteria? Isn't that true?"

"No, I can't say that," Deibl rebutted.

When asked by Burr what other uses these compounds may have had, besides growing bacteria and possibly botulism, Deibl answered with authority, "I don't know of any."

The defense was unable to shake Deibl's firm assertion, and with the completion of Deibl's testimony the prosecution rested its case.

Eisenberg argued that the state had failed in its duty to present adequate evidence and that the charges against Miss Hoffman should be dropped. Torphy took the motion under advisement and recessed court until the afternoon.