Winter of frozen dreams (31 page)

At 2:45 in the afternoon, after only fourteen hours of deliberation, the jury foreman notified the bailiff that a decision had been reached.

Jim Doyle and his family had been about to depart Madison for a weeks vacation to their cabin in the northern Wisconsin backwoods when he got a phone call that the verdict was due. A verdict reached so soon upon the conclusion of a lengthy and complex trial usually indicated the jury had not been convinced of the prosecutions argument and an acquittal was forthcoming.

Doyle and Burr had feared this scenario. Both were convinced of Barbara Hoffman's guilt. Both recognized the difficulties of proving her guilt beyond a reasonable doubt.

When Doyle heard that deliberations had concluded,

he didn't question the news or wait for the official announcement. He sat at the kitchen table, and while his two boys gathered up fishing bait and basketballs for the week up north he composed a brief statement for Jerry Hancock, a friend and an assistant DA, to read to the press. Doyle praised John Burrs efforts in prosecuting the case and attributed the defeat to a lack of hard evidence. Though he personally did not agree with the verdict, the DA's office respected the fundamental wisdom of the jury system and would abide with the decision.

Doyle folded the statement, dropped it into his mailbox for Hancock to retrieve later, and set off with his family to their north-woods retreat. Hopefully a week on a lake with nothing to do would allow his frustrations to subside and the public flak over losing the case to defuse.

The defense had presumed a similar conclusion. At Rohde's Restaurant, one block from the Eisenberg law offices, cases of champagne were put on ice for the victory celebration. The media would be invited. Perhaps Barbara might consent to be interviewed, and Don Eisenberg could revel in the glory of his triumph.

The courthouse was nearly empty, and the courtroom appeared bleak and cavernous after the fanfare of the previous two weeks. Thirty or so spectators were scattered in the gallery to hear the decision announced. The swirl of a buffing machine resonated through the hallways as a janitor waxed the floors. The footsteps of cameramen echoed.

Barbara Hoffman sat at the defense table as her lawyer chatted with reporters. Eisenberg wore a dark suit and white shirt, somber dress for the flamboyant attorney who everyone thought was about to get the biggest victory of his career. His conversation was not casual and cocky. His mood was quite serious, as if he were trying to suppress his joy that an early decision meant an acquittal or trying to suppress his doubts that it could also imply a hard and fast guilty verdict.

Judge Torphy convened the proceedings. Barbaras

hands were clasped, and she stared straight ahead, peaceful, as though this moment in court was no different from any other during the two-and-a-half years of adjudication.

Barbaras parents, who had expressed their resolute love for their daughter from the witness stand, a love that had not been shaken by this horrendous ordeal, were not present. They had come to Madison to testify on Thursday and had returned to Park Ridge the same evening.

As the bailiff conveyed the verdicts on Berge and Davies to the judge, the cameras eye peered in on the defendant. She was utterly poised. Torphy glanced at the papers and shuffled them in his hands. Burr and Spencer waited.

Throughout the trial Torphy had referred to the case and its victims as Berge and Davies, in the order of their deaths, but now, at the denouement, he switched the order.

On the charges of murdering Jerry Davies, Torphy read placidly, the jury finds the defendant—not guilty.

Before the gallery could finish a collective gasp, as Eisenberg rose from his chair in expectation, as cameras pivoted from the bench to the defendant to capture the elation, as Barbara Hoffman sat silent, her sangfroid unbroken, Torphy read the second verdict. On the charges of murdering Harry Berge, the jury finds the defendant— guilty.

Eisenberg slumped back into his chair as if repelled by the force of that single word. His head dropped to the table, pinned in bitter defeat. He grasped Barbaras hand.

From Barbara there was no reaction. She sat immobile. Her face was not paralyzed, stunned, or catatonic. Barbara merely stared ahead, apparently unfazed by it all.

The jury was polled. Eisenberg asked for bail while Barbara awaited sentencing and appeal. Burr objected, and Judge Torphy denied the request.

Barbara and her lawyer were permitted a few minutes alone in a courtroom office. Then she was handcuffed and led away by the deputy sheriff.

— 16 —

John Burr and Chris Spencer celebrated the verdict with a couple of beers, then drove to their homes, exhausted from the trial, glad to be done with the case and its tragedies, in dire need of a private retreat.

Jim Doyle interrupted his vacation when he received news of the jury's verdict. At a press conference on Monday morning Doyle thanked the prosecution team for their extraordinary efforts and congratulated them on the conviction. The guilty verdict on Berge and the not-guilty on Davies indicated that the jury was not prejudiced by having the murders tried together and that they'd weighed the evidence carefully and made a thoughtful judgment according to the facts. To Doyle it was an example of how thoroughly and responsibly a jury can conduct itself. He singled out Ken Curtis as a citizen often in trouble with the law who, nevertheless, should be lauded for performing an important civic duty.

Robert and Vi Hoffman would not be prosecuted for what Doyle believed was perjury on the witness stand. Their situation had been extremely difficult. Any parent could understand their trauma, and he did not feel justice would be gained from their prosecution.

The DA's harshest remarks were hurled at Don Eisen-berg. Before the trial began, Barbara Hoffman had signed an affidavit stating that she was cognizant that Eisenberg had represented both her and Sam Cerro at one time, and this could be construed as a conflict of interest. The affidavit was a protection demanded by Torphy so that Barbara Hoffman could not appeal at a later date on grounds of inadequate representation. Despite this safeguard, Doyle suggested Eisenberg be investigated by the state bar for conflict of interest, as he considered the defense lawyers actions unethical and in violation of the state bar's codes.

Eisenberg was in the courthouse at the time of

Doyles charges. When confronted by reporters with Doyles remarks, Eisenberg was disgusted. "I think the district attorney should investigate the facts before he flows with oral diarrhea of the mouth/ 7 he said angrily.

For Chris Spencer the Hoffman trial had a very pragmatic result. His ineffectiveness at direct examination and the combative nature of the criminal courtroom convinced him to pursue other aspects of law. He was a good lawyer, but not a good criminal lawyer. Within a year he quit the DAs office and took a position with American Family Insurance, whose headquarters were in Madison.

For Burr especially the case had profound implications. The morning after the trials conclusion Burr and his two sons, ages five and seven, went shopping at a Kohls supermarket for doughnuts and eggs. The cashier had recognized his face from the newspaper coverage and congratulated him on the conviction; she also complimented him on his fine-looking children. It was a harmless comment, and Burr smiled, but the recognition by a stranger startled him. Because of the extensive media attention, he was a public figure now. For a prosecutor this was disturbing. Regarding the safety of his children, Burr became suddenly paranoid. He had shunned publicity, yet he was being hailed and congratulated whenever he left his house, as other incidents were to prove.

In the weeks that followed, Burr seldom ventured from home except to go to work. He was depressed and extremely protective of his family and his privacy. He realized that after much intense and prolonged effort his emotions had to tumble, but he hadn't anticipated that the drop would be so severe. His other assignments seemed trifling and mundane compared to the drama of the Hoffman case.

At age thirty-eight Burr had argued and won the most publicized murder trial in Wisconsin history. In terms of his professional career it would be the biggest challenge of his life. He doubted any other case could be as intricate and exciting, and he had three decades yet to

practice. There seemed nowhere to go but down, and though his reputation as a winner had been sealed by the verdict, the months after were anticlimactic. Burr considered leaving the DA's office and entering private practice. The victory had been bittersweet. For John Burr time and his family carried him through the bouts of depression and disillusionment. He abandoned ideas of a private practice, and by autumn flickers of his old enthusiasm sparked anew.

17

Sentencing was scheduled for Wednesday, July 2nd, but the ceremony was a formality. Wisconsin law does not provide capital punishment, and conviction of first-degree murder carries an automatic sentence of life in prison, with eligibility for parole in eleven years, four months. The average life sentence served in the state is nineteen years.

Eisenberg again asked the court to set bail, pending the outcome of defense appeals, and Torphy denied the motion. The judge also dismissed five separate defense motions requesting the conviction to be overturned.

Torphy asked Miss Hoffman if she had any statement to make before sentencing was imposed.

Barbara stood. Her words were lucid and direct. "I did not commit the crime of which I was accused and of which I was convicted/'

It was the single remark she had uttered regarding the Berge and Davies murders.

Torphy sentenced her to the Taycheedah Correctional Institute for Women in Fond du Lac.

On Thursday, July 3rd, Barbara Hoffman was shackled and transported by sheriffs deputies to the Taycheedah prison facility. She did not speak during the three-hour drive. She appeared completely calm and self-possessed.

—18 —

In early 1980 Al Mackey left Wisconsin. He moved to southern California, where he had family, but his drinking problem and his financial woes moved with him.

Friends kept him informed of the Barbara Hoffman trial. The verdict neither surprised nor depressed him.

Al Mackey passed the majority of his days on the beach, drinking beers, staring at the ocean as if he had lost something that he expected to resurface in the whitecaps of the next wave. He grew maudlin in sentiment, crusty in appearance. He dreamed of buying a sloop and sailing the Caribbean. His demise seemed inevitable. The odd jobs he took did not suit him. Alcohol seemed to be the single constant in his life. Tired, defeated, he shuffled back to Madison.

The years of abuse caught up with Al Mackey and in one swift moment exacted their toll. Mackey suffered a massive stroke. His body shut down and quit, and for a few precious seconds his brain was deprived of an adequate supply of oxygen. The damage was profound. His basic motor skills and his memory were severely impaired.

There would be no more beers, no more late-night visits to massage parlors. For Al Mackey the future was hospital wards and physical therapy sessions and the distant dream of recovery.

— 19 —

Since Barbara Hoffman had been acquitted of murdering Jerry Davies, and because she was named beneficiary on the insurance policies Davies had obtained through Phil Sprecher and Central Life Assurance, she demanded full payment. The policies had a total value of $20,000.

The claim was disputed by Ruth Davies. She had been beneficiary of the policies until her son made the sudden

changes only three weeks before his death. Ruth Davies argued that Hoffman had manipulated her son into amending the policies, then had killed him for pecuniary gain.

When Eisenberg scoffed at the charge, Ruth Daviess lawyer threatened a civil suit. In a bizarre twist it would have been possible to have Hoffman charged with Daviess murder in a civil court action. A jury would have been convened, and Hoffman would have been tried for Daviess murder in order to decide whom should be awarded the insurance money. However, in a civil case the criterion for guilt is not as severe as in a criminal matter. Instead of being convinced of guilt beyond a reasonable doubt, the jury need only be persuaded by a preponderance of the evidence. Fifty-one percent guilty would be enough to render a guilty verdict.

The different standard of judgment caused Eisenberg to propose an out-of-court settlement, which Ruth Davies accepted. Consequently, Barbara Hoffman and Ruth Davies split the $20,000 insurance payment.

— 20—

To Burr and Doyle the Hoffman conviction presented a peculiar irony.

In a case as elaborate as a puzzle, the pieces never fit exactly. Questions remained unanswered. Barbara Hoffman proved an elusive and enigmatic figure. No one—not lovers or lawyers or cops—caught more than a glimpse of her. Her motivations, her desires, her self were carefully hidden. The case against Hoffman had been won, yet her mystery persisted.

Even as the prosecutors went to trial, they had serious doubts about what actually happened on the night of December 23rd. Why did Hoffman murder Harry Berge? Was $35,000 and a small house in Stoughton her motive?

They had convinced a jury, but privately they were

baffled. Why did she murder Berge for such a paltry sum when Davies had been set up for $750,000? Why not kill Davies? Hoffman had invested time and money—over a years planning and $13,236 in insurance premiums—in preparing him for the kill. Why ruin such a careful and elaborate scheme?

And why kill Berge in a third-floor apartment in downtown Madison? Disposing of the corpse was beset with problems. If she wanted to murder Berge, why not do it elsewhere—at his home in Stoughton or on any quiet country road between there and Madison? Why kill someone in a place where getting rid of the body was almost impossible without help and where the chances of detection would be greatest?

These questions puzzled Burr and Doyle. It was hard to make sense of what had happened. As they looked closer, the questions multiplied.

The differences in the two deaths were as striking as the similarities. Daviess murder was meticulous and premeditated. It was plotted with attention to the smallest detail. Especially to Burr, whose career was prosecuting these kinds of cases, the murder seemed flawless. The body was clean of any marks or indications of foul play. There was no evidence that anyone other than Davies himself had been involved. Suicide was the perfect cover. However, with Berge it was not so neat. The body had been beaten. There were signs of a struggle—the four-centimeter scratch on the neck, the horribly swollen genitals. Berge had suffered an angry, violent death. Daviess death appeared natural, almost serene.