Winter of frozen dreams (30 page)

Berge. Repentant and defeated, he'd committed suicide.

"There were no bruises on Mr. Davies, as though he had been dragged. There was one scratch, a shaving scratch. Mr. Davies, unfortunately, died in the bathtub, and all of the evidence, circumstantial and otherwise, leads to only one conclusion, and that is suicide/ 7 Eisen-berg asserted.

The letters Davies mailed out were his final testament. The letters were not carbon copies. Each was written separately. He wanted the authorities to understand the truth of what had happened, to understand that Barbaras inclusion in this awful tragedy was a nightmarish mistake.

Eisenberg reminded the jury that the enormous life insurance policy the prosecution had emphasized as a motive for so much of Barbaras actions had expired a month prior to Davies s death. It was worthless. The policy was invalid, and Barbara Hoffman could not collect a penny on that policy. A partial payment had been refunded to her; thus she'd been aware of its expiration.

The defense attorney talked about Barbara Hoffman's parents. He expounded on the parents' veracity and integrity and recounted Robert and Vi Hoffman's crucial testimony.

Sweat peeled from Eisenberg's face, rolled down the thick muscles of his neck, and soaked into the starched collar of his shirt. Sweat whipped through the air in droplets as he gesticulated, enraged at the suffering the Hoffmans had endured. He conjured the confusion and horror they must have felt. Their home, their life savings were risked so that Barbara could be free until her court date, until this hideous nightmare could be ended. Vi Hoffman's tears contradicted the prosecution's bogus charges, and Vi Hoffman did not lie.

Eisenberg paced to the jury box and issued a challenge. "Now, if you believe that either of those people is lying," he cried confidently, "then find Barbara Hoffman guilty. How about that!"

The defense had been allotted three hours for its

closing argument, and Eisenberg had devoured every second of that time. The closing address portrayed the lawyers style exactly, as if this single speech were an embodiment of his persona. Every element of Eisenberg's character was exhibited, at its best and its worst. The magnificent oration mixed fervent passion with eloquent persuasion with rodomontade. His tongue cut surgically and slashed savagely. His words stabbed swiftly and surely or bludgeoned heedlessly, carried on by the weight of their motion. He beseeched the jury for justice yet played the bully. He pleaded for compassion for his client, whose actions had been misconstrued, then arrogantly deprecated a cops small but embarrassing error as if he harbored a personal vendetta. Rather than discredit, it looked as if Eisenberg tried to destroy.

Some observers felt that amid the hyperbole and the brilliance Eisenberg forgot pertinent details or overlooked small facts. It was said that he parlayed a sharp intellect, a brazen confidence, and a satin tongue into a theory of defense. At moments he appeared a carnival barker with fancy clothes and a law degree.

The repeated reference to Barbara Hoffman as a "frail little girl" proved particularly inane. It ignored so many realities: that Barbara Hoffman was twenty-eight years old and not a girl but a woman; that she had worked for more than two years in Madison's massage parlors; that she had been independent of her family for years; that her intelligence and study could have earned her admission to medical school if she had desired it. Her history, her complexities, had been exposed to the jury, yet Eisenberg resorted to what he perceived was a catchy phrase in the hope that it would gloss over the reality, maybe in the hope that the words would sound powerful enough to distort the reality.

"You can see how different lawyers are," Eisenberg said. "You can see the difference between John Burr and myself. But even with my expertise, mistakes can be made. I don't think I've made any."

He finished his closing with a command to the jury.

"When John Burr gets up to make his final argument, his rebuttal argument, be Barbaras lawyer. Ask 'What would Don Eisenberg say to that?'"

John Burrs initial closing had been listless and meandering. His rebuttal displayed an incredible transformation.

Whether it was the contemplation of justice not served, or the sudden vision of personal and public defeat, or the din of Eisenbergs bombast that sparked the resurgence Burr himself later was unable to explain. His tone was not angry. The words were not a desperate and reckless tirade. Rather than flail wildly as he felt the case slipping away, Burr remembered his dictum that the prosecutor was not supposed to be flamboyant. He assessed his resources, pondered his opponent s fiery closing, and conducted a coherent and strenuous assault on Eisenbergs defense, prying every crack into a hole with wedges of circumstantial evidence.

Burr stood to address the jury, unbuttoned the jacket of his beige summer suit, and launched an unrelenting offensive that did not cease until his hour and a half had expired.

Without delay, without vituperation, Burr challenged the veracity of Robert and Vi Hoffmans testimony. He snatched the long-distance phone records from the exhibit table. The listings pertained to the Easter weekend Davies had died. The Hoffmans had maintained they were visiting their daughter. Burr recalled their steadfast claims that nothing unusual happened the night they spent in Madison.

"Saturday night, when everybody went to bed at ten and nothing happened because they're all light sleepers—" He waved the telephone bill like a battle flag. "March 26, 1978, a one-minute phone call to Capitol Heights, Maryland, at 0:32. Twelve-thirty in the morning. But nobody got up. Nobody talked on the telephone. Nobody did anything. March 26, 1978, a ten-minute call to Chicago at 12:58, almost one o'clock in the morning. March 26, 1978,

a one-minute phone call to Capitol Heights, Maryland, at 1:08 a.m."

Three long-distance calls within a span of forty minutes, when everyone was sleeping, when there were no disturbances, when the phone was positioned a few feet from the Hoffmans, who lay on the sofa. "And they wouldn't lie for their daughter. Is that piece of paper from the phone company lying? Mr. Eisenberg told you that if they lied, then she's guilty. Did they lie?"

Introduced as evidence on the first day of the trial, the phone records were a devastating revelation. Burr expressed astonishment that the parents could sit mute for two-and-a-half years, allowing their daughter and the entire family to suffer, when they could have ended the suspicion and torment by coming forward with their story. The rationale that the authorities would amend the times of death if this vital information were announced was preposterous. Even after the arraignments and preliminary hearings, when the times of death were firmly established, neither the Hoffmans nor their attorney mentioned the alibi. Their silence was contrary to how parents would react. Their silence was guarded rigidly because it was a fabrication. But the veteran prosecutor quickly excused the parents. "I think they told you the truth about the Barbara Hoffman they knew, they know and love. And I'll tell you something: in their shoes, I probably would have done the same darn thing. I think the evidence in this case shows another Barbara Hoffman exists. The other side of her. A side the evidence has shown."

Burr corrected the defense's contention that Barbara had lacked a real motive. "Think about motive when you're in there. Think about the elimination of a witness against you in a murder case. Think about a total of $69,500 in insurance money, and a house."

Burr assailed other of Eisenberg's assertions. Lulling couldn't have planted blood in the snowbank behind Barbara's apartment building on January 19th. A check of medical reports showed that Berge's blood type was not known until weeks later. There were no telephone records

of Barbara Hoffman phoning Laabs in Milwaukee, not because the calls were not made, as Eisenberg proposed, but because the telephone company destroys its records after six months. Berge died in December. The documents were requested shortly thereafter, but the orders to Laabs had been placed in March and April and were no longer available.

And the suicide letters? "You have your foreman read it out loud," Burr told the jury. "This is a suicide note? Here's a guy who's putting his 'house in order,' and he's gonna leave $35,000 to a woman he loves and leave her charged with two, or one count of murder. Where does it say in there i, Jerry Davies, killed Harry Berge, and I'm willing to go to jail for it'? Make sense? Under what circumstances were these letters written? You'll note they're undated. . . . Why are they undated? Someone might want to mail them when someone knows he's dead."

Daviess actions were strange for a person about to commit suicide. "Mr. Davies filled out a Visa application to increase his credit. Ate a large meal. Didn't leave a will for dispersion of his personal property. Wrote a check for April's rent." Then he climbed into a bathtub and put a pill in his mouth and died. It stretched the limits of credibility?

Furthermore, if he had killed Berge, he would have noticed that death by cyanide was anything but pleasant. Why would he then choose the same horrible means of death for himself? If Davies was the murderer, why did he receive the cyanide on May 18th, apply for a passport on May 19th, then procrastinate for seven months? Crimes of passion were spontaneous. Why wait?

"Why did he implicate the one he loved?" Burr asked. "Why go to the police? Why?"

With the barrage of questions echoing in the courtroom, Burr concentrated next on the similarities between the two killings.

"Let's take a look at the facts for a moment. Both of these gentlemen were nude. Both died of a lethal dose of cyanide. Both had eaten a large meal before they died on holiday weekends. Both knew the defendant. Both met her

at the same place. Both were single and loners. Both had insurance policies on which she was a beneficiary. More than a superficial coincidence, folks?"

Burr paused.

'The manner in which both these crimes were committed marks them in one distinctive, significant way. If you're a jealous lover, you don't kill with cyanide. Cyanide death requires a theme based on trust and love. You don't kill a rival with cyanide. I don't think there was any force involved in what Gerald Davies and Harry Berge did. They did it out of trust, love, affection. Blind trust and blind love."

During his initial closing argument he had seen members of the jury yawn, close their eyes, almost nod into sleep. They'd looked hot and distracted. Eisenberg had awakened them with the cries and bellows of his volatile closing argument. Now Burr had seized their attention. The jury was alert and listening, and he focused their consideration on Barbara Hoffman's intricate involvement in the lives and deaths of Harry Berge and Jerry Davies. In a placid, assured voice Burr began a methodical recitation of the circumstantial evidence accumulated against Barbara Hoffman.

The recitation was concise and powerful. Burr refrained from embellishment and sentimentality. He stuck every significant shred of evidence in front of the jury's eyes, in an exact and calculated manner that magnified its force. He read a letter from Barbara Hoffman to Transport Life asking for an address change for all correspondence regarding the Davies policy, from her post office box in Madison to another address. Less than two days after the Transport Life policy had expired, Jerry Davies amended the beneficiary of his regular life insurance policies, which totaled $20,000. His mother, Ruth Davies, was excised, and Barbara Hoffman was entered as the new recipient. Less than three weeks later Davies was dead.

Ken Curtis's testimony was reiterated. Burr reviewed Barbaras botulism and Mexico and marriage plot scheme

and emphasized how Curtis's confrontation with Barbara in late spring of 1977 had forced her to adjust her plans.

"Curtis tells her, 'You'll never get away with it/ and watch what happens now."

Wedding date: 4/22/77. Wedding is canceled.

Library card application, 4/28/77, and Linda Millar pops up.

5110177: Change of beneficiary for $750,000 policy signed by Mr. Davies charging ownership to the defendant.

Exhibit 136, on 5/10/77, Laabs order. Poisons.

5/13/77: More Laabs order. Shipped to 2305 South Park (Daviess address).

5/14/77: Post office box application, Linda Millar.

5/23/77: Laabs order, 2305 South Park, a watch glass.

6/1/77: Last Laabs order.

7/1/77: Miss Hoffman goes to work at EDS Federal.

7/2/77: First Federal passbook, Linda Millar.

7/11/77: Change of beneficiary and ownership forms for $750,000 policy approved.

7/26/77: Second premium is due. Defendant is now the owner and beneficiary.

10/13/77: Mr. Berge has his insurance changed to benefit Linda Millar.

10/25/77: He changes the deed to his house.

12/22/77: Berge is dead by 9:30 p.m.

12/23/77: Mr. Hunt sees defendant around Mr. Berges vehicle.

12/24/77: Mr. Berges body is disposed of.

The sequence of circumstantial evidence poured on unabated, pummeling the idea of Barbaras innocence with short, quick jabs. Burr did not have a knockout punch. There was no hard, irrefutable piece of evidence that would demand a guilty verdict, so Burr hurled an array of bruising, stinging jabs, wounding from every angle.

'it all leads to one and only one conclusion," Burr declared. "The defendant, in a cold-blooded manner, poisoned two men to collect insurance money."

At 4:25 Friday afternoon, after Judge Torphy had read his final instructions, the Berge-Davies murder case went to the jury.

— 15—

The jury deliberated for seven hours on Friday night before retiring. Its task was resumed early Saturday morning. The jurors asked for rereadings of testimony. They wanted to know what time John Hunt had said he'd observed Barbara Hoffman in the predawn hours of December 23rd, and they wanted to hear again Lulling's testimony about blood found in a snowbank behind 638 State Street. The jury also wished to examine certain evidence.

Over Eisenberg's vehement objections Judge Torphy permitted the jury to review the telephone records that Burr had argued proved Mr. and Mrs. Hoffman's perjury. They were also allowed to see a copy of the cashier's check used to pay the initial premium on Davies s Transport Life policy.