Winter of frozen dreams (21 page)

Although amused by the theatrics in the hallway, drama was not the reason Burr and Spencer had dropped the original murder charge. The new complaint against

Barbara Hoffman based on the cyanide discovery represented a critical tactical maneuver for the prosecution. According to Wisconsin state law a criminal charge can be refiled if new evidence is found. By dismissing the original complaint the prosecution avoided an appeal issue. Most importantly, however, the new complaint conjoined the two murders so that both cases could be tried at the same time and before the same jury. The burden of separating the murder charges and arguing that they should be contested in different courtrooms, at different times, with different juries, now rested with the defense.

A surprised Judge Northrup was hearing traffic violations when his court was invaded. The pandemonium in the corridor spilled through the double oak doors and into the stale arguments about radar guns and parking fines. Eisenberg escorted Hoffman to the front row, where they huddled in private and studied the complaint she had been served. They were pursued by the procession from Byrne s court—reporters and spectators scrambling for seating space, TV and radio crews lugging their bulky equipment, clumsily barging about, testing the lighting, unraveling cable.

Northrup demanded quiet, but the traffic court had been hopelessly disrupted. He finished the schedule promptly and, without hesitation, began Hoffmans bail hearing.

The new complaint alleged that Hoffman had murdered Berge and Davies with cyanide. The disposal of Berge's body as recounted by Jerry Davies was outlined, as was a brief history of Daviess and Hoffmans relationship and their quest and procurement of a $750,000 insurance policy on Daviess life. The dispersement of Berges estate, including property and insurance benefits, to Hoffman, a.k.a. Linda Millar, was stated. Daviess subsequent death and the discovery of cyanide by the state crime lab was described. An investigation of the U.W. chemistry laboratories was detailed, including a report of cyanide missing and presumed stolen from Dr. Bruce Selman's lab, of building personnel identifying the defendant as being pres-

ent in the chemistry facility during this time, of professors stating that the lethal toxicity of cyanide had been discussed in classes Barbara had attended. Furthermore, Ken Curtiss testimony at a John Doe hearing in August, where Barbaras plot to kill Davies had been sketched, was cited. Also mentioned was that Charles Geisen, Eisenbergs law partner, had contacted the DA in early January and offered Curtiss information for consideration of leniency for a client facing criminal charges.

The bail hearing commenced with the defense waiving a reading of the complaint. The prosecution team requested that a cash bail of $30,000 be established, which was twice the original amount. Eisenberg ridiculed the sum as outrageous. The defendant had not missed a court appointment, had exhibited no indication of flight, and posed no danger to the community. Burr emphasized the severity of a double murder charge.

"I don't care if it's one murder or fifty murders, or deaths, as I prefer to call them," cried Eisenberg. "I want a signature bond."

Northrup set bail at $20,000 cash. It meant $5,000 would have to be added to the $15,000 already posted before Barbara could be released.

"You're going to make her sit in the Dane County Jail?" Eisenberg asked, amazed and angry.

"We're dealing with two counts of first-degree murder," said Northrup.

The defense lawyer harangued. He castigated the conduct of the police, the deception of the prosecution, the decision of the court.

"Let me say I'm very disappointed in this court and with you personally," he stormed at Northrup.

"You can hold your press conference in the hall, Mr. Eisenberg," snapped the judge. He announced that the preliminary hearing would be heard before Judge Angela Bartell on November 27th, and court was adjourned.

The media arranged a press conference area in the corridor. Burr and Spencer disappointed reporters when they declined comment and skipped out the stairway.

While the prosecution took refuge in beer and popcorn at the Pinckney Street Hideaway, their loquacious adversary appeared to relish the attention. Eisenberg pontificated, joking with reporters, chatting as if it were cocktail hour at the Nakoma Country Club. He played furious that the prelim was assigned to Bartell, the same judge who had presided over the John Doe hearing that prompted the Davies charge. He acted appalled that Nor-thrup had raised the bail and remanded Barbara to custody until he could gather the extra cash.

A question was put forth about the marriage and murder plot Barbara Hoffman had contrived for Davies. Eisenberg cautioned that Curtis was an unreliable personality who may have misconstrued or completely fabricated the bizarre story of the plot. He predicted Charles Geisen would testify at a prelim hearing that specific elements in the complaint regarding the Davies plot were undeniably false. He stated uncategorically that his law partner had never mentioned any of the strange tale to him, nor had Geisen informed him of any efforts for negotiation with the DA. His legal strategy, Eisenberg elaborated, was to demand a separate hearing and trial on each of the murder accusations.

Eisenberg ambled to the elevator, no doubt noting that a TV camera captured his every gesture for the evening news. In an hour he returned with $5,000 and obtained Barbaras release.

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In the weeks following the November 16th debacle defense attorney Eisenberg plotted strategy. He filed numerous motions with the court, including one asking that Angela Bartell remove herself. Bartell consented and withdrew. The case was shuffled to Moria Kruegar. However, she'd been involved in the first John Doe investigation in early January 1978. She also withdrew. The case was placed before circuit court judge James Boll.

On April 16, 1979, Boll commenced a hearing to determine whether the charges of double murder against Barbara Hoffman were sufficient to merit a trial.

The prosecutions allegations as stated in the criminal complaint were sketched, and witnesses were brought forth to verify selected details. The insurance information was solicited.

Ken Curtis outlined Barbaras insidious plans to marry and murder Jerry Davies.

"I told her that I was aware of a plot for her to kill somebody, and that my attorney was also aware of it, and I showed her some insurance laws that I had my attorney Xerox." Two days later, Curtis testified, Barbara had confessed to her plot. That conversation had occurred in early spring of 1977.

Curtiss intervention, according to the prosecution, caused Barbara to amend her scheme. The marriage to Davies was postponed. Barbara established a new identity, complete with social security number, bank account, library card, and post office box. Thus Linda Millar was born.

In October 1977 Harry Berge decided to change his life insurance policy and designate Linda Millar as the beneficiary. Less than three weeks later he instructed his lawyer to alter the deed on his house and list Linda Millar as joint tenant, for "one dollar and other due and valuable considerations."

Berge had become acquainted with Barbara Hoffman at Jans Health Spa some two to three years prior. With the third premium soon due on Daviess policy, and in desperate need of cash, Barbara had invited Harry Berge to her apartment on December 22, 1977, murdered him with cyanide, and enlisted Davies to help her hide the corpse. The $750,000 insurance policy on Davies remained in effect. In January 1978 Barbara Hoffman was arrested for Harry Berge's murder.

Bail was posted, and in February 1978 Barbara Hoffman mailed a check for the third premium to Transport Life but issued a stop payment a few days later. Davies

then changed other life insurance policies he held to name Barbara Hoffman, rather than his mother, as beneficiary. Two weeks later, on Easter weekend in March, Davies was discovered dead in his bathtub, killed by a lethal ingestion of cyanide.

The prosecutors version portrayed a complex and sinister web of circumstances that revolved around sex, love, and money, a web that had snared a pair of gullible, lonely men, a web spun by Barbara Hoffman.

Eisenberg attacked the state's reconstruction of events. Davies never accused Barbara of having any connection with Berge's death, only with finding the body in her apartment. Moreover, Davies had declared openly that Barbara was innocent of the charges against her. Certainly Davies didn't consider Barbara Hoffman a threat to his own well-being. He'd dated her until his death. The $750,000 insurance policy on Davies had expired in March, which eliminated any motive for killing Davies. Eisenberg also emphasized that the state's contention that Barbara Hoffman had concocted a plan to marry someone, kill him with botulism, and collect the insurance money relied on a witness who had not come forward until seven months after the fact and then only after a plea bargain arrangement had been made to entice his testimony.

During the three-day hearing before Boll the defense offered its own interpretation of the killings. Davies was depicted as a spurned lover. In a fit of jealousy and rage he had murdered Berge, the rival for Barbara's affections, and had implicated Barbara as a sort of punishment for her infidelity. When police acted on his statements, Davies realized the gravity of the insinuation against Barbara. He maintained her innocence, but his entreaties were ignored and his beloved was charged with murder. He saw a doctor for anxiety and was given a prescription for Valium. Upset, depressed, trapped in a situation of his own device that had leapt out of control, Davies wrote four copies of a letter that would clarify the circumstances and exonerate Barbara. He'd swallowed a prescribed dosage of Valium to calm his jitters and then committed suicide by the most

readily available method—the cyanide he had administered to Harry Berge.

The credibility of the scenario was buttressed by the letters Davies had posted to Anita Clark, Eisenberg, the DA, and the police on the weekend he had died.

Eisenberg and John Burr sparred over the admissibility of the letters as evidence. The defense lawyer argued that the letters were a kind of suicide note. Eisenberg cited court statutes that state that dying declarations are admissible in cases of homicide where the death of the declarant is the subject of the charge. Burr countered that there was no indication when the letters had been written. They were not dated. Unless it could be proved Davies wrote the letters the day he died, they could not be considered suicide notes.

"The statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless it's corroborated," the prosecutor argued.

In a victory for the defense Boll accepted the letters as evidence.

After three days of hearings the court issued its conclusions. The Transport Life policy for $750,000 had been terminated prior to Daviess death, yet there was no evidence that the defendant was cognizant of the fact of its expiration, Boll ruled. The decisive witness at the prelim, the judge recognized, was Ken Curtis. Boll acknowledged that Curtis's testimony was tainted by his plea bargain agreement with the DA's office relating to Sam Cerro and by his relationship with the defendant. These considerations, however, did not negate his testimony. A final complication was Jerry Davies. Boll read a statement made by Davies at a John Doe hearing:

I would like to say that I believe she is innocent and just panicked. I know myself that I didn't do the right thing, and she must have been under a lot more stress than I was when she found that body.

Which Davies, the court asked, was to be believed?

The Jerry Davies of the original prelim, whose testimony implicated the defendant? The Jerry Davies of the John Doe, who seemed equivocal concerning the defendants role? Or the Jerry Davies who'd penned those last letters, apologizing for his blundering and absolving the defendant of any part in the murder? It must be for a jury to decide, said the judge.

The prosecution had established probable cause, Boll ruled. Barbara would stand trial for the murders of Harry Berge and Jerry Davies.

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On August 21, 1979, Don Eisenberg filed numerous motions on behalf of the defendant.

He requested a change of venue, presented a motion to dismiss charges due to insufficient evidence, sought to have the complaint dismissed because it contained "deliberately false material, reckless material misstatements, negligent material, misstatements of fact, and/or intentional lies/ 7 He filed a motion to dismiss because of improper John Doe proceedings. He asked that the murder charges be severed, arguing that if a defendant may be prejudiced as a result of the joinder then the court may order severance. Furthermore Eisenberg contended that "the acts alleged lack any connection in time, place, or design."

The court took all motions under advisement, and all motions were eventually dismissed.

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Various postponements and delays forced the trial to be rescheduled, from November 1979 to February 1980 and again, to May 1980. Almost a half dozen Dane County judges had participated in some aspect of the case, and the trial was finally assigned to Michael Torphy, a judge who

had had no previous involvement in the cases legal machinations.

The selection of Torphy to preside pleased both the prosecution and the defense. The jurist had earned a reputation as tough yet fair. He was extremely well versed in evidentiary law. He refrained from interjecting his personality and dominating a courtroom, preferring to allow the lawyers a broad latitude to develop and argue their case. In a trial that threatened to be as long and tedious as the Berge-Davies murder case—courthouse veterans anticipated three weeks of testimony—Torphy s quiet approach would be a big asset. The trial would move as smoothly and expeditiously as possible. Also, the judges poise and restraint would act as a counterbalance to the volatile and vitriolic Eisenberg. Torphy would keep the courtroom skirmish focused on the charges and their merits.

On May 9, 1980, after studying defense briefs arguing that the allegations of murder against Barbara Hoffman be severed and conducted independently and in separate trials, Torphy announced that he had rejected the motion. The Berge and Davies charges would be heard together, by the same jury, which would render a verdict on each charge.