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Chapter 6: Supporters of Brummer offer their theories; they say the evidence was too thin and question makeup of jury

Chapter 6: Supporters of Brummer offer their theories; they say the evidence was too thin and question makeup of jury

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Eleven years ago, a Dane County jury concluded Penny Brummer fired the shot that killed Sarah Gonstead in the early morning hours of March 15, 1994.

Yet, a dedicated core of supporters has refused to accept Brummer's conviction, arguing that the evidence in the circumstantial case was too thin, accusing investigators of ignoring other potential leads and suggesting she was convicted because of her sexual orientation.

In a 1995 article titled "Reasonable doubt: A lesbian behind bars says a homophobic justice system fingered her for murder while the real killer runs free," the national gay and lesbian journal The Advocate noted there were no openly homosexual members of Brummer's jury.

Although prospective jurors who had expressed strong revulsion to homosexuality were excused, some others said they found it objectionable but said their views wouldn't color their opinion on the evidence.

"No matter what they say about putting it aside, if you're prejudiced, that is going to be in the back of your mind the whole time," Brummer told The Advocate.

After their daughter pointed them to the story, Sheila Berry, a former Winnebago County victim/witness coordinator, and her husband, Doug, a pharmacist, decided to examine the case. Their book, "Who killed Sarah? Shedding new light on a questionable conviction," came out in April.

The couple run a Web site dedicated to highlighting cases of those they believe have been wrongly convicted.

Their book on the Brummer case is based largely on police and court records and interviews with Brummer and her defense team. Police, prosecutors and most of the key witnesses were either not contacted or declined to be interviewed. The result reads like the defense team's narrative of the case, taking Brummer's point of view, assigning dark motives to police and prosecutors, and seizing on inconsistencies in witnesses' testimony or unanswered questions to suggest others were involved.

The Wisconsin Innocence Project of the UW-Madison Law School, which seeks to free those who have been wrongly convicted, also began looking into Brummer's case six years ago, said John Pray, the program's co-director.

"The students I had believed in Penny, liked the case, but they hadn't cracked any signficant new evidence that was going to lead to a motion" to reopen the case, Pray said.

With the publication of the Berrys' book, Pray said, the case is being reviewed again. Pray said he expected his team will focus this time on the physical evidence, none of which directly tied Brummer to the killing.

That includes the smashed .22-caliber bullet that killed Gonstead. Brummer's defenders are hopeful further investigation will show the bullet was from a Magnum cartridge, which packs a higher explosive charge than a standard cartridge and likely couldn't be fired from the presumed murder weapon -- a revolver owned by Brummer's late father -- which has never been found.

"If you knock out that gun as the potential murder weapon, it significantly helps the case," Pray said. Such a development could also bolster Sheila Berry's theory that Gonstead was killed by motorcycle gang members, who she said favor the stronger stopping power of Magnums.

Were leads ignored?

Although the book offers no new evidence, the Berrys highlight some other leads it says were largely ignored once investigators set their sights on Brummer.

Those include a blue Norris motor home police had spotted in a parking lot near Club 3054, the former bar on East Washington Avenue where Brummer said Gonstead left her after a night of bar hopping to walk to the apartment of Glenda Johnson, her best friend and Brummer's estranged lover.

Police reports suggest the motor home was being used by members of the Outlaws motorcycle gang. Police apparently didn't interview any of those associated with the vehicle, although one of them was in jail at the time Gonstead disappeared.

Johnson's stepmother had also given police the license number of a van with bubble windows spotted in the neighborhood. Brummer said after she'd dropped Gonstead off she thought she saw her talking with a group of people with motorcycles and a gray van with "bug-eyed" windows in a nearby Taco Bell parking lot.

The owner of the van had a criminal record, including first-degree sexual assault, and battery against a former girlfriend -- who happened to live with her parents on Mineral Point Road, less than two miles from where Gonstead's body was found.

The man told police he didn't recognize Gonstead from her picture. He wasn't asked to provide an alibi for the night she disappeared, according to police reports.

Contacted by the State Journal, the man said he knew nothing about Gonstead's disappearance. And, contradicting the report, he insisted he was never interviewed by police about the case.

"I never, never got shown any pictures of a girl or anything, or got told that my van was at Taco Bell," he said.

More discrepancies

Autopsy results also showed a discrepancy between Gonstead's blood-alcohol level in her liver (0.05 percent) and in her chest cavity (0.14 percent).

A state crime lab technician said the latter result likely overstates the amount of alcohol in Gonstead's system when she died because it includes ethanol produced during decomposition.

That suggests either the bartenders who served the women misstated how much they drank or that Gonstead was killed hours later, after her blood-alcohol level had started to fall off -- and Brummer was at home.

The Berrys also note that, in their initial statements to police, bartenders at two of the bars the women visited -- Jake's Bar & Grill in Pine Bluff and Paul's Speedway Bar & Grill on the far West Side -- gave overlapping times of when the two women were at each establishment. Gonstead's body was found weeks after she disappeared less than two miles from Jake's.

Viewed in the most favorable light for Brummer, the bartenders' conflicting testimony could suggest the women went to Jake's first and then the Speedway, which would have put them on the road back to Madison and farther from the crime scene.

But the Berrys' strongest accusation, building on charges Brummer's attorney made in court, is that Johnson was somehow involved in her best friend's death.

Although she was highly emotional, often crying and even throwing up when she became upset, some said Johnson appeared more worried than she had cause to be before Gonstead's mother confirmed her daughter was missing.

And she couldn't account for her whereabouts at 7 p.m. two days later when David Zoromski said he saw a suspicious man and a bundle on the road near where Gonstead's body was later found.

Another theory

The Berrys' theory goes like this: Johnson and her friends rode motorcycles; those friends may have included "wannabe" biker gang members; the Outlaws motorcycle gang was recruiting in Madison and had attracted some of those people to the parking lot near Club 3054; Gonstead recognized them and stopped to talk but was later abducted and killed by one or more of them as part of a "gang initiation."

Johnson did not return several messages seeking comment; family members said she was traumatized by Gonstead's death and the subsequent accusations that the defense raised against her at trial. Efforts to contact others that the Berrys suggest may have been involved also were unsuccessful.

Prosecutors stand by the conviction, although Deputy District Attorney Judy Schwaemle said last month her office is open to considering new evidence in any case. Schwaemle, one of the prosecutors in the case, also serves on a state task force aimed at preventing wrongful convictions.

"In this case, however, there has been a fair amount of speculation, innuendo and accusation. But there has been no new evidence," Schwaemle said. "Unless such evidence surfaces, I will continue to have confidence in the verdict and the legal process though which that verdict was achieved."

Schwaemle declined to address specific questions raised by the Berrys' book, adding it's "not really possible to try a case on paper.

"There was, however, a real trial that took place close in time to the events and during which 12 jurors had the opportunity (to) evaluate the witnesses, their testimony and all evidence presented, and on the basis of which they concluded to a person and beyond a reasonable doubt that Penny Brummer intentionally killed Sarah Gonstead," she said.

Jurors interviewed recently also remain convinced they made the correct decision in finding Brummer guilty.

Several objected to the current round of second guessing, noting most of those commenting on the case weren't there to hear the testimony, view the witnesses in person and discuss the evidence among neutral observers.

"I can't imagine sitting through that trial and not coming to the same conclusion we did," said former juror Annette Minter. "There was no way I would have gone any other way."


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