Who killed Sarah? The trial of Penny Brummer
It's been 11 years since Penny Brummer, then 25, went to prison for at least 50 years for killing Sarah Gonstead after a night of bar hopping. Now, a Virginia couple hopes to spring her with a book revisiting her conviction for the 1994 execution-style slaying.
The Wisconsin Innocence Project of the UW Law School, which seeks to free those who have been wrongly convicted, also is taking another look at the evidence. They'll be joined later this fall by a team of graduate students from the Journalism School studying investigative reporting.
But is there anything to the claims of Sheila and Doug Berry, authors of "Who Killed Sarah?" They accuse investigators of ignoring possible suspects, ranging from members of a local motorcycle gang to Gonstead's best friend. Prosecutors stand by their conviction.
Wisconsin State Journal reporter Phil Brinkman, who covered Brummer's trial, will retrace the case this week in a series of stories. Was Brummer the cold-blooded killer prosecutors portrayed her to be? Or was she railroaded? Read on and decide for yourself.
- Phil Brinkman | Wisconsin State Journal
It had been nearly a month since Penny Brummer and her girlfriend, Glenda Johnson, had broken up. Outwardly, the reasons Johnson gave Brummer for wanting to split up had to do with Brummer's unwillingness to help around the house: doing the laundry, washing the dishes.
But the truth was a lot more complicated. Pretty and vivacious, Johnson, then 20, had had no trouble attracting the attention of men. Brummer had been the first woman with whom she'd become involved.
After seven months of good times -- plus a lot of drinking and a lot of quarreling -- Johnson had begun to question her sexual orientation.
Her confidante had been Sarah Gonstead, Johnson's best friend since second grade. The two spoke most every day, often about their favorite soap opera, "Days of Our Lives." How much Johnson told Gonstead about her relationship with Brummer isn't known. But it's likely Gonstead would have reinforced any doubts Johnson had about Brummer.
Gonstead, who was straight, had disapproved of Johnson's choice of partner but not, she wrote in an unfinished letter to a friend, because Johnson had "come out that she is gay." Rather, she said, "the relationship she's in isn't healthy for her, and there's nothing I can do about it!!!"
Brummer grew up in Spring Green, where she spent her teen years playing softball, hunting with her father and brother, and binge drinking with friends, she'd say later, to the point of blacking out. Small but tough, she joined the Air Force after high school and was assigned to base security at an air base in California.
There, she married a gay airman, which allowed both of them to live off base and date whom they wished, out of sight of military superiors. After her discharge in 1993, she and a girlfriend moved back to Spring Green, but the relationship didn't last.
Brummer found work as a grocery store stocker before getting a job at a Middleton window blind manufacturer, where Johnson also worked.
Johnson, who grew up on Madison's East Side and briefly attended UW-Whitewater before returning to her home town, had a boyfriend at the time. By June, however, they broke up. About the same time, Johnson, who had been sharing an apartment, moved into her own place, about half a block from what was then Club 3054, a gay bar where Brummer liked to hang out.
The two had grown close, and by July they were lovers. Soon, they were living together in Johnson's Hoard Street duplex.
Yet, their relationship was often tempestuous. According to various accounts, Johnson was flirtatious and moody, while Brummer was controlling and jealous of the time Johnson spent with her straight friends. When Johnson would go out to cruise Madison's East Washington Avenue on the motorcycles she and her friends called "crotch rockets," she said Brummer would stay at home and sulk.
By early 1994, the relationship was starting to fray. The pair split in mid-February.
Brummer, then 25, took the breakup hard. Johnson "was in my head 24 hours a day," Brummer would later say. Johnson said she hoped they'd remain friends.
Yet, when Brummer surprised Johnson one night at her East Side duplex, she was stunned to find her watching a movie with a male co-worker. Brummer sat there for a while in stony silence, then left.
The next day, Monday, March 14, 1994, Brummer decided to leave work early for a night out. She asked some co-workers to join her, but none could get off early.
She bought a burger, got a 12-pack of beer and headed to the house on Madison's North Side where Gonstead -- who had recently dropped out of UW-Madison, where she had hoped to study engineering -- lived with her mother.
"I knew Sarah didn't have a job, wasn't going to school or anything, so I figured, she'll go," Brummer later told the national gay and lesbian journal The Advocate.
Last seen near club?
Gonstead had recently turned 21, and though the two of them had never socialized alone together, Brummer suggested they go for a belated birthday celebration. She chatted with Gonstead's mother, Linda, while Gonstead changed her clothes, donning a purple and pink jacket as she left.
Drinking as they drove, the two stopped at Wonder's Pub on the East Side, the Regent Street Retreat near Camp Randall Stadium and Paul's Speedway Bar & Grill on the far West Side. Brummer estimated she had 12 to 15 drinks; Gonstead eight, maybe nine.
The women stopped to relieve themselves in the woods on the north side of Lake Mendota, Brummer said, ending the evening about 11 p.m. at Club 3054 on East Washington Avenue. Several cars were in the small parking lot, Brummer said, so she parked in the back.
But Gonstead wasn't feeling well. She got out of the car to walk to Johnson's apartment, half a block away, Brummer said.
About the same time, Brummer spilled a bottle of beer next to the parking brake of the car -- her mom's Honda Civic -- tipping the beer "over on to my arm and my leg and all down the seat," she would say later.
After spending 10 to 20 minutes cleaning up the mess, Brummer said she decided against going in the club and headed back to her mother's home in Spring Green, where she'd been living since her breakup with Johnson.
As she drove off, Brummer said, she thought she saw Gonstead in the adjacent Taco Bell parking lot talking with a small cluster of people -- among them a petite figure with long brown hair -- accompanied by motorcycles and a gray van with "bug-eyed" windows. It would be the last reported sighting of Gonstead for nearly a month.
Frantic calls
The next morning, Brummer later told police, she called Johnson at home to ask whether Gonstead had made it to her apartment. Johnson also remembered the call. Yet, mysteriously, phone records would later show no such call was made. What is known is that the two spoke later that day when they showed up for their second-shift jobs in Middleton.
Johnson said Gonstead hadn't shown up and was shocked that Brummer would let her walk to her apartment alone, inebriated and at night, not knowing whether Johnson was even home. When her shift ended, Johnson sat in the company parking lot with her co-worker and former boyfriend, Brett Turner. Johnson was worried, the two would later say, to the point of tears.
It wasn't until she got home that night that Johnson said her fears were realized: Gonstead's mother, Linda Gonstead, had left a message on her answering machine wondering where her daughter was.
The next day, March 16, Johnson made a frantic series of calls to family, friends, Linda Gonstead, and the police. She and Brummer reported for work, but Johnson left early, and then called Linda Gonstead again later that night.
A bright pink bundle
Shortly before 7 p.m. that night, David Zoromski, an analytical chemist for the state Department of Agriculture, Trade and Consumer Protection, was driving his son to religion class from his home in rural Mount Horeb to a church in Pine Bluff.
As he crested a small hill on Mineral Point Road, Zoromski was surprised to see in his headlights a red SUV or pickup truck parked on the opposite shoulder, partly on the road.
The victim of a burglary years earlier, Zoromski had made it a point to take note of suspicious vehicles along this lonesome stretch of road. He slowed down and saw what he took to be a slightly built young man standing in front of the open right passenger door.
As he passed, Zoromski said, the man looked up, then put his head down again.
At his feet, visible under the elevated carriage of the vehicle, lay a bright pink object roughly the size of a duffel bag.
- Phil Brinkman | Wisconsin State Journal
After giving Sarah Gonstead a couple of days to return home, her mother, Linda, reported her daughter missing on March 16, 1994.
Although it's not unheard of for a 21-year-old college dropout to disappear from view for a while, it was completely out of character for Gonstead, who still lived at home, attended church regularly and didn't have a boyfriend.
Penny Brummer had been the last person known to have seen her. After a night of bar hopping with Gonstead, Brummer said she left her late March 14 outside a bar on Madison's East Side.
Gonstead, Brummer said, wasn't feeling well and wanted to walk to the nearby apartment of Glenda Johnson, her best friend and Brummer's ex-girlfriend.
In the days and weeks that followed, family and friends scoured the East Side for Gonstead. They posted flyers and looked for anyone who might have seen her. Meanwhile, Brummer went over her itinerary of that night several more times with police and with members of Johnson's family, who had started their own investigation.
Police interviewed the owner of a van matching the description of one Brummer said she saw the night Gonstead disappeared. Although the man had a lengthy criminal record, investigators didn't pursue the lead after the man said he hadn't been in the Taco Bell parking lot that night and didn't recognize Gonstead from her picture.
Johnson, Gonstead's best friend since second grade, was frequently ill and missed work in the days after Gonstead's disappearance. Witnesses said Brummer, who worked at the same Middleton window blind manufacturer as Johnson, seemed aloof, calm.
"She said she couldn't let it bother her like it was bothering Glenda," Johnson's former boyfriend, Brett Turner, would later testify. "She had a job to do, so forth. She couldn't afford to be taking off."
Then on April 9, a mild, windy day, Christopher Clemons was riding his bicycle along Mineral Point Road west of Pine Bluff when he noticed an incongruous flash of color in the barren woods along the road.
Returning for a better look, Clemons soon realized he was looking at a body.
Shot at close range
Word of the discovery spread quickly, with media outlets speculating the body could be that of Gonstead.
Brummer and several of Johnson's friends and relatives gathered at Johnson's apartment to watch the late television news report. Iris Darlene Derrick was one of them.
When she asked Brummer how Johnson was doing - meaning her emotional state at the possible discovery of her best friend's body - she said the answer surprised her.
"She told me that . . . the situation between her and Glenda was getting better and she wasn't holding her breath, but she was hoping that they'd get back together," Derrick would later testify.
The group watched a movie while they waited for the news to come on. What happened next is in dispute, but some witnesses would testify that Brummer wanted to keep watching the movie instead of the news. Brummer has denied it, saying the discussion was about whether to return to the movie after the news was over.
An autopsy would later find Gonstead had been shot at close range in the back of the head with a .22 caliber bullet. The coroner put the date of death between March 14 and March 20, 1994.
Police interviewed Brummer and Johnson again, this time probing deeper into their relationship. Brummer said they'd broken up that winter after she discovered Johnson had gone back on birth control pills. Johnson, who told police she was unsure of her sexual orientation, had been talking with Gonstead about dating men again.
Brummer once again repeated her summary of her night out with Gonstead, which she said consisted of visits to Wonder's Pub on the East Side, the Regent Street Retreat near Camp Randall Stadium and Paul's Speedway Bar & Grill on the far West Side. They stopped to relieve themselves on the north side of Lake Mendota before ending the night in the lot of the former Club 3054 on East Washington Avenue.
'I was pretty drunk'
But the next day, investigators decided to drop in at Jake's Bar & Grill in Pine Bluff, west of Madison, to ask whether anyone had seen the women. Why, yes, bartender Heather Engen said; she had served Brummer and another young woman March 14. They had stayed about an hour and a half, leaving sometime between midnight and 1 a.m.
It was a significant development: In her descriptions of that night, Brummer had never mentioned Jake's, less than two miles - and a straight shot down Mineral Point Road - from where Gonstead's body was found.
Police brought Brummer in again and asked her directly whether she'd ever been to Jake's. She said she hadn't. Told she and Gonstead had been seen there, Brummer said, "I was pretty drunk. I must have blacked out."
After he accused her of being involved in Gonstead's death, Dane County Sheriff's Det. Kenneth Pledger said Brummer became teary-eyed, began fidgeting and nodded slightly.
"I said, 'I know you'd like to take this night back' . . . (and) she was sitting there and again shaking her head real slightly in the affirmative," he would remember later.
Police arrested Brummer later that afternoon.
A half-minute away
No physical evidence has ever tied Brummer to Gonstead's murder. But investigators felt they had more than enough circumstantial evidence to charge her, beginning with the obvious: She was the last known person to see Gonstead alive, and she had left out of her description of that evening a critical detail: the visit to Jake's.
Prosecutors also were immediately skeptical of Brummer's story about letting Gonstead walk to Johnson's house rather than drop her there and wait until she'd gotten safely in the door.
Johnson, who like Brummer worked second shift, likely wouldn't have been home at 11 p.m., when Brummer said Gonstead left her. Gonstead didn't have a key to her apartment, and her own home was two miles away.
In a 1995 interview with the national gay and lesbian journal The Advocate, Brummer said the Club 3054 lot was practically in Johnson's back yard, a half-minute to minute's walk away.
"Everybody always asks me, 'Why didn't you walk her home, why this, why that?' " she said. "I walked it all the time. I never thought anything would ever happen to anybody."
Hoping to find the murder weapon, sheriff's deputies went to Brummer's home and presented her mother, Nancy, with a search warrant listing the guns owned by Brummer's late father. Sheriff's Det. David Bongiovani asked about the only .22 caliber handgun on the list, an old 9-shot Hi Standard revolver.
"She walked us down the hallway and said, 'It's in the top dresser drawer,' " Bongiovani would later recall.
But when they opened the drawer, the gun was missing.
- Phil Brinkman | Wisconsin State Journal
The more that Dane County investigators looked, the more they confirmed their suspicions that Penny Brummer was responsible for the death of Sarah Gonstead.
Gonstead, 21, had disappeared after she and Brummer went bar hopping the night of March 14, 1994. Her body would be found nearly a month later off Mineral Point Road, less than two miles from a bar in Pine Bluff where witnesses said Brummer and Gonstead had been seen drinking together.
Brummer had never mentioned the bar when police interviewed her about that night. After she was told she'd been seen there, Brummer said she must have "blacked out."
That omission would form the cornerstone of the case against Brummer when she went to trial that fall. Another would be Brummer's access to a .22-caliber handgun -- now missing and presumed to be the murder weapon.
Prosecutors Judy Schwaemle and Ann Sayles would spend a week laying out other circumstantial evidence against Brummer, then 25:
Brummer said the two ended their night together after she pulled into the lot of the former Club 3054 on East Washington Avenue. Gonstead wasn't feeling well, Brummer said, and said she was going to walk to the nearby apartment of Glenda Johnson, Gonstead's best friend and Brummer's estranged lover.
She told police when she pulled into the lot that several other cars were there, forcing her to park in back. But the club was closed that night, and the lot was presumably empty.
Police interviewed the security guard at the Taco Bell where Brummer said she thought she saw Gonstead talking with a group of people with motorcycles and a van. But the guard said he never saw such a group.
Brummer insisted she'd never been on the stretch of road where Gonstead's body was found. Yet friends and associates said she had pointed it out before as a good route to avoid police on her way to Spring Green.
When Brummer returned to her mother's house in Spring Green in the early hours of March 15, she showered and washed her clothes. Brummer said it was because she'd spilled beer on herself.
The day after Gonstead disappeared, Brummer also had the car she'd been driving cleaned (again, she said, because she had spilled beer in it the night before).
Within days of Gonstead's disappearance, Brummer also sought to re-enlist in the Air Force and got her hair restyled, although associates said she had talked of doing both of those things for some time.
Jealousy as motive?
Brummer's motive, prosecutors argued, was jealousy.
Still pining for her ex-girlfriend, Glenda Johnson, Brummer had considered Gonstead an obstacle to winning her back, they said. Best friends since childhood, Gonstead and Johnson talked constantly. Perhaps she also encouraged Johnson, who was then questioning her sexuality, to go back to dating men.
To bolster their case that Brummer was capable of resorting to violence, prosecutors had hoped to introduce allegations Brummer had threatened to kill another friend more than a year earlier after she learned the woman had had an affair with a previous lover.
When the two women moved to California, according to court records, Brummer allegedly asked a co-worker to help her "get rid" of the friend by getting her an unregistered gun.
Dane County Circuit Judge Patrick Fiedler refused to allow the testimony, saying it didn't involve Gonstead and would prejudice the jury.
But on the day prosecutors planned to rest their case, a 45-year-old loan officer named James Foseid showed up with a startling tale.
'I'm going to waste her'
With the jury gone for lunch on Sept. 25, Sayles said Foseid had come to her office to say he'd overheard Brummer threatened to kill someone. He said he hadn't come forward before because he assumed the police could handle the case without his help, and he didn't want to get involved.
Brummer's attorneys were furious and sought to bar the 11th-hour testimony, complaining they didn't have time to adequately check out his story. This time, however, Fiedler ruled for the prosecution, and Foseid testified three days later.
Foseid said he'd been in the Echo Tap, 354 W. Main St., sometime that early spring when the woman sitting at the bar next to him -- whom he identified as Brummer -- complained to a female companion about a "fat ugly bitch" who was trying to break up her relationship with another woman.
"She said . . . she's trying to talk her into going straight," Foseid said Brummer told him when he asked who she was talking about.
Still stewing, Foseid said, Brummer later told her friend, "I know what I'm going to do. I'm going to waste her."
He said he protested and suggested she work out her problem, but the two women abruptly left.
The defense quickly sought to discredit Foseid, noting he initially told police the conversation happened on a Thursday night; work records showed Brummer worked Thursday nights. Foseid later said it could have been a Friday.
Foseid also first put the event about two to three weeks before he saw Brummer's picture in the newspaper accompanying a story about her arrest. But Gonstead would have been dead at least a week by then.
While many considered Foseid's testimony the prosecution's ace in the hole, jurors largely ignored it, several members of the panel would say later.
"Did this guy really sit down with her or was he doing some attention-seeking?" said Kurt VanSomeren, the jury foreman. "In my mind, the case had been made long before he appeared."
Foseid's credibility was further questioned in 1998, when he told the Madison weekly Isthmus that the woman at the Echo had actually identified herself as Penny, although he'd never mentioned that in court. He declined to comment for this story other than to say he didn't name Brummer because he wasn't asked.
After Foseid's testimony, it was defense attorney Jack Priester's turn. Priester, it turned out, had a couple surprises of his own.
- Phil Brinkman | Wisconsin State Journal
As in any criminal trial, the state had the burden of proving Penny Brummer killed Sarah Gonstead. Brummer wasn't obligated to testify in her own defense.
But when it was the defense team's turn to answer the allegations against his client, attorney Jack Priester promptly called Brummer to the witness stand.
Although she was staring at a potential life term in prison, Brummer -- a slight figure freshly coiffed in her characteristic spiked mullet -- seemed unusually calm as she disputed charges she shot Gonstead in the back of the head after a night of bar hopping and left her body in the woods off Mineral Point Road west of Madison.
Witnesses suggested Brummer was jealous of the time Gonstead spent with her former girlfriend, Glenda Johnson, best friends since childhood.
If she was jealous of anyone, Brummer said, it was Brett Turner. Turner was Johnson's former boyfriend, with whom Johnson had remained close. In contrast, Brummer said she considered Gonstead a friend.
Brummer said another former girlfriend, testifying earlier for the prosecution, was mistaken when she said Brummer used Mineral Point Road as a back road to Spring Green. She pointed out on a map other shortcuts the woman likely was referring to.
She denied telling police that the parking lot at Club 3054, where she said she and Gonstead ended the night, was full. Rather, there had been "three to four cars" parked next to the bar. Prosecutors had brought in the owner of the bar to say the bar was closed that night.
Prosecutors had savaged Brummer's story about "blacking out" her visit to Jake's Bar & Grill, a bar in Pine Bluff near where Gonstead's body would later be found, saying she appeared to have no trouble recalling events from later that night -- even after drinking more. They called an expert who said such blackouts usually end only after the person has sobered up or slept it off.
But Brummer stuck to the story, later backed by a defense expert, who likened the temporary memory loss to an "intermittent brownout."
Prosecutor Judy Schwaemle picked at any holes in Brummer's story, noting, for example, that Brummer didn't call Gonstead before surprising her at her house on March 14, 1994, with an offer to go out. Brummer didn't have Gonstead's phone number, Schwaemle charged, "because Sarah really wasn't your friend, was she?"
Knowing people were looking for Gonstead, Brummer didn't volunteer to talk to police for 3 1/2 days after she disappeared, Schwaemle noted. Brummer had said she didn't contact police sooner because she knew only family members could report a missing person.
But it was what David Zoromski saw that buoyed the defense team's hopes and remains one of the biggest unanswered questions about the case today.
Was body dumped?
Brummer said that after leaving Paul's Speedway Bar & Grill on Madison's West Side, she and Gonstead stopped to relieve themselves in the woods on the north side of Lake Mendota. When they got to Club 3054, Brummer said, Gonstead announced she wasn't feeling well and offered to walk to Johnson's apartment. As she drove off, Brummer said, she saw Gonstead talking with a group of people with motorcycles and a van with "bug-eyed" windows.
Prosecutors alleged the women were last at Jake's and, while they may have stopped to relieve themselves in the woods, it was the woods off Mineral Point Road, where they said Brummer shot Gonstead before returning home to Spring Green. There was no stop at Club 3054, no spilled beer, no motorcycles or bug-eyed van.
Yet nearly two days later, Zoromski said he saw a red SUV or pickup parked off the side of Mineral Point Road near where Gonstead's body eventually would be found. Next to the open passenger door, he said, stood what he took to be a slightly built young man who appeared to be trying to avoid his gaze. At his feet was what appeared to be a pink duffel bag.
Zoromski says today he's convinced that he saw Gonstead's body being dumped. What sealed it, Zoromski said, was when the defense laid on a courtroom table the brightly colored purple and pink jacket Gonstead was wearing when she died.
Brummer's attorneys seized on his testimony as proof that others must have been involved in Gonstead's murder. But they didn't stop there. They sought to implicate Turner, who drove a red Jeep and whose father drove a red Ford Bronco, and who roughly matched the description of the person Zoromski saw.
Turner produced punchclock records indicating he was at work at the time, although the defense argued he could have sneaked out.
Other suspects?
In their recent book on the Brummer case, Virginia authors Sheila and Doug Berry argue that another co-worker and friend of Johnson with access to a red vehicle also could have been involved. This man apparently wasn't asked about his whereabouts that Wednesday. Efforts to reach the man for this story were unsuccessful.
If either man was involved, Brummer's defenders argue, Johnson -- Gonstead's best friend -- must have been, too. Defense attorneys reminded the jury that Johnson appeared more worried than she yet had cause to be when she arrived at work the day after Gonstead disappeared. It was also curious, they said, that Johnson didn't immediately call Gonstead's mother, Linda, when she got a phone message from her that night. And Johnson also couldn't account for her whereabouts at 7 p.m. on March 16 when Zoromski saw the suspicious vehicle.
Johnson offered scattered explanations: Yes, she had no reason initially to suspect Gonstead had disappeared when she and Brummer talked about the previous night, but "as the night went on, I started thinking more and more about what possibly could have happened that night," she testified.
She didn't call Linda Gonstead the night she got the message because it was after midnight. And she could have been at her parents' house the evening of March 16.
Juror Jay Olsen, who said Johnson struck him as "very young, very unsure who she was, very emotional," found the defense theory implausible.
"I don't think I ever thought for a minute that she was involved," Olsen said of Johnson. "It didn't make any sense."
Location disputed
Prosecutors took the opposite tack with Zoromski, noting the discrepancy between where he said the vehicle was -- about 100 feet from the deer path where Gonstead's body was found -- and where a Dane County sheriff's deputy said Zoromski put it, as much as 250 feet away.
In sometimes hostile questioning, prosecutors suggested it was too dark for Zoromski to have noticed the amount of detail he reported, and that the man he saw could have been a turkey hunter scouting the area for the upcoming season. Perhaps the man was relieving himself at the side of the road, they said, which could account for the "suspicious look" Zoromski saw.
When a sheriff's deputy interviewed him days after Gonstead's body was found, Zoromski said, the response was: "It's interesting. We'll take it into consideration. But we already have someone in mind." Authorities didn't interview him again for four months.
"I expected people looking for truth," Zoromski complains today, adding he takes no position on Brummer's guilt or innocence. "What I got was an adversarial system as nitpicky as they could be to discredit what I'd seen. It kind of left a bad taste in my mouth."
Still, it would be up to the jury to determine whether Zoromski's story and Brummer's own testimony would inject enough doubt into the case to free Brummer.
To the defense team, it seemed clear enough. No physical evidence tied Brummer to the crime. The murder weapon was never found. Maybe Turner was heading to Johnson's house and ran into Gonstead, abducting her and killing her himself because she was keeping Johnson from spending more time with him, Priester said.
Far fetched?
"It is no more spectacular than the state walking in here and coming down with some absurd theory that Sarah was murdered (by Brummer) because she was trying to convince (Johnson) to go back to men," he said.
[Editor's note: This story has been updated to reflect a correction. In the original version, the last quote from attorney Jack Priester referenced the wrong individual. The quote should be: "It is no more spectacular than the state walking in here and coming down with some absurd theory that Sarah was murdered (by Brummer) because she was trying to convince (Johnson) to go back to men."]
- Phil Brinkman | Wisconsin State Journal
Forbidden to discuss the case for the two weeks they spent listening to testimony, jurors in the Penny Brummer murder trial were itching to get to work after closing arguments ended shortly before 7 p.m. Sept. 30, 1994.
Despite the late hour, they ordered food and immediately plunged into the case. At one point, Dane County Circuit Judge Patrick Fiedler sent in a note asking if they wanted to break for the night. A message came back: Jurors wanted to keep going.
"Nobody felt they would be able to sleep," foreman Kurt VanSomeren said. "There wasn't anybody yawning or any kind of fatigue, either mental or physical. If there had been, I would have said this isn't right."
After a couple of hours, the first vote was 10 to 2 to convict. The holdouts weren't sure Brummer was innocent of killing Sarah Gonstead but wanted stronger proof. All the state could offer was a lengthy list of circumstantial evidence.
Even those who believed Brummer was guilty were troubled by the lack of physical evidence tying her to the crime. Jurors spent the next several hours in emotional debate. Some were crying.
"There are a lot of cases done on circumstantial evidence," juror Jay Olsen said later. "Our job was to do the best we can with what we have."
The defense had hoped to sow enough doubt with the testimony of David Zoromski, who reported seeing something suspicious, possibly someone dumping something, near where Gonstead's body would be found.
Ultimately, jurors didn't know what to make of Zoromski's tale. It could have been a coincidence. But when they considered the defense team's overall theory about someone other than Brummer being involved they judged it "not impossible but improbable," Olsen said.
They went back over the evidence, and at 3:30 in the morning on Oct. 1, they voted again. This time, the vote was unanimous: Brummer was guilty.
'I didn't do it'
The verdict was read an hour later, once lawyers and family members could be roused back to the courtroom.
"I have nothing to say. I have nothing to say," Brummer said through wracking sobs when asked by Fiedler whether she wished to make a statement. "All I want to say is I didn't do it."
Her sentence was automatic under Wisconsin law: Life in prison. Fiedler pronounced himself satisfied with the verdict, finding the evidence in the case "was strong enough to exclude to a moral certainty every reasonable hypothesis of the defendant's innocence."
Months later, Fiedler would set her first parole eligibility at 50 years, when Brummer will be 74.
Among the things that convicted Brummer, jurors said later, was her omission of Jake's Bar & Grill in Pine Bluff from her story to police about where she and Gonstead had been on the night Gonstead disappeared.
The bar is less than two miles from where Gonstead's body eventually would be found. Jurors didn't buy her story about having "blacked out" the experience.
The missing .22-caliber revolver from her mother's house "certainly did not help Penny's case," VanSomeren said.
Suspicious of timeline
But above all, jurors didn't believe her timeline for the evening, which also included visits to Wonder's Pub on Madison's East Side, the Regent Street Retreat near Camp Randall Stadium and Paul's Speedway Bar & Grill on the far West Side.
Two witnesses said Brummer and Gonstead left Jake's, presumably the last bar they visited, between midnight and 1 a.m.
Brummer conceded they must have been at Jake's but insisted their last stop had been the Speedway.
She said she then took Gonstead around Lake Mendota to the East Side, dropped her off to walk to her friend Glenda Johnson's house, drove back through town, took a lengthy detour in Cross Plains to avoid police, and got home to Spring Green around 1:30 a.m. to catch "The Jerry Springer Show."
But a police officer testified Brummer's drive from the East Side to Spring Green alone would have taken an hour and 20 minutes.
Appeal rejected
Brummer's conviction wouldn't be the end of the case. Her lawyers appealed, and lost. Her family hired a private investigator and took out newspaper ads asking for anyone with information about the murder to come forward.
In 1995, The Advocate, the national gay and lesbian newsmagazine, published a story about the case that caught the attention of a former Wisconsin paralegal and her husband, both now living in Virginia. They had a penchant for pursuing potentially wrongful convictions. After their own investigation, they published a book last spring on the case that baldly concludes "up to a dozen people, perhaps more, know exactly what happened to Sarah and who was involved."
None of them, they say, was Penny Brummer.
- Phil Brinkman | Wisconsin State Journal
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."
- Phil Brinkman | Wisconsin State Journal
In their book on the killing of Sarah Gonstead, Sheila and Doug Berry suggest a second examination of the bullet fragment taken from Gonstead's skull could rule out the presumed murder weapon, a .22-caliber handgun owned by Penny Brummer's late father.
John Pray, co-director of the Wisconsin Innocence Project, said students are investigating whether such an opinion might make a difference in Brummer's case. If attorneys can make a case for further testing, Deputy District Attorney Judy Schwaemle said her office would consent to releasing the evidence.
The question Brummer's defenders seek to answer is whether the bullet might have come from a Magnum cartridge, which contains more gunpowder and propels the bullet faster than a standard cartridge, often causing it to fracture badly on impact. The presumed murder weapon -- which has never been found -- likely could not have fired the larger Magnum cartridge.
The Berrys assert Magnum bullets are difficult to tell apart from standard .22-caliber bullets, and the distinction may have been missed in the initial analysis by the state Crime Laboratory.
But "a .22-Magnum bullet is a very easy thing to distinguish from your other .22-caliber bullets," said Bill Newhouse, a firearm and tool mark examiner for the lab who succeeded David Larsen, the examiner who conducted the original investigation of the bullet. That's because most Magnum bullets have a copper-alloy jacket covering the lead core.
Larsen probably would have noticed if the bullet were a Magnum, Newhouse said, "But the condition of the bullet is going to be the determinant. If it's badly fragmented, it's possible that it may not be recognizeable as that."
Although the autopsy found small flecks of lead in Gonstead's hair and scalp, the bulk of the bullet was recovered in one piece inside Gonstead's skull, pathologist Billy Bauman testified.
Jeffrey Scott Doyle, a firearm and tool mark examiner for the Kentucky State Police whose research on distinguishing between the two kinds of bullets the Berrys cite in their book, also said differentiating between the two "should be very obvious" to the trained eye.
"I don't doubt that the original examination was correct," Doyle said. "But it's not unheard of to get second opinions."
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