By Bill Lueders, News Editor

Brummer, the last person known to have seen Gonstead alive, was a suspect from the start. She maintained that she dropped Gonstead off at the Taco Bell, near Johnson's house, and drove to her mother's home in Spring Green.  She got home in time to watch an episode of "The Jerry Springer Show" that aired between 1:37 and 2:37 a.m. She recalled the show's topic, even though it wasn't listed in any program guide.

    Madison Police Det. Linda Draeger, assigned to the case, learned about two suspicious vehicles that may have been present at the Taco Bell. One, a motor home, belonged to a felon with a lengthy criminal record who was reportedly in Madison to start a motorcycle gang. The other, a van, belonged to a man with convictions for lewd behavior, battery and drugs. According to the Berrys, Draeger failed to investigate the first man and took the second at his word that he was not involved.

• The .14% BAC of Sarah's chest cavity fluids was inflated by decomposition but was cited by prosecutors to support a time of death "before 2:00 a.m. on March 15, 1994." The .05% BAC of Sarah's liver was closer to her actual BAC when she died, but would place her death at around 5:00 a.m. on March 15th, when Penny was 40 miles away.
  
• The badly damaged bullet that killed Sarah was identified as a .22 caliber long rifle, hard to distinguish from a .22 caliber magnum.  The bullet damage is consistent with a magnum, not a long rifle.  A magnum bullet cannot be fired from the target pistol -- never produced -- that prosecutors claim Penny used to kill Sarah.
  
• Surprise witness James Foseid claimed to have heard Penny threaten to kill Sarah two weeks after Sarah was dead.  Foseid changed his "death threat" story -- and continues to change his story -- to incriminate Penny.

   Draeger, say writers Sheila and Doug Berry, "missed critical cues, failed to follow through on leads and...spun her wheels over the same old ruts." The writers were startled to learn that this second man was of slight build with long brown hair. Brummer had told police that she last saw Gonstead talking to a person who fit this description, although she assumed from behind that it was a woman. The description also matched that of a suspicious-looking man an eyewitness, David Zoromski, reported seeing on March 16, near where Gonstead's body was found.

     At Brummer's trial, Draeger testified that she knew the motor home was in the Wisconsin Dells on March 20, contradicting her own report, which says she observed it by the Taco Bell on that date. Draeger, say the Berrys, also deviously implied that fellow officer Sue Armagost was mistaken in claiming to have seen the motor home in this location on March 15, the day Gonstead was murdered.

    Police soon learned that Brummer and Gonstead had gone to Jake's Bar on Mineral Point Road, two miles from where Gonstead's body was found. Brummer, an alcoholic who had that night consumed at least nine beers and five shots, did not recall having been to this spot. From then on, write the Berrys, investigators zeroed in on Brummer as the killer and "viewed any evidence to the contrary as either a challenge to be hammered into the framework of their theory, or minimized and dismissed."

    Brummer was prosecuted by Judy Schwaemle and Ann Sayles of the Dane County District Attorney's Office. The case was assigned to Judge Patrick Fielder. The Berrys say they tried to interview all of these individuals, as well as Det. Draeger.

     "We never even got the courtesy of a response," says Sheila Berry. Adds Doug, "If they're worried about the book being one-sided, why won't they present their side?"

     Schwaemle and Draeger did not return phone messages from Isthmus. Sayles is on vacation. Fielder says he can't comment: "Ethically, I have nothing to say except what's on the record."

     The record--thousands of pages of evidence and transcript testimony--provides the basis for the Berrys' book, Who Killed Sarah.  Their conclusion is that all of these individuals took actions that helped secure Brummer's conviction, while ignoring and misrepresenting evidence that suggested someone else was to blame.

     The prosecution argued that Brummer, then 24, blamed Gonstead for Johnson's decision to break off their relationship. They say she used a .22 caliber pistol that had belonged to her late father. But they never produced this or any other physical evidence linking Brummer to the crime.

     Judge Fiedler allowed the prosecution to present a surprise witness, James Foseid, who claimed he heard Brummer at the Echo Tavern threatening to "waste" the "fat, ugly bitch" who was endangering her relationship with another woman. When the Berrys searched the newspaper archives under Schwaemle's name, they found she used similiar testimony of a "hit contract" to hike the sentence of Anthony Hicks, who was convicted of burglary and sexual assault.

     Hicks spent nearly five years in prison before being released in 1997, when DNA tests conclusively excluded him as the rapist. To this day, Schwaemle has refused to admit she was in error.

     The Berrys say Foseid's testimony was inconsistent, and indicated that he heard these comments about two weeks after Gonstead was killed. Moreover, Foseid identified Brummer from a Wisconsin State Journal photo in which she sports a dramatically different haircut than the one she had at the time of Gonstead's murder. The defense team led by attorney Jack Priester, they say, failed to sufficiently puncture Foseid's claims. "He didn't make connections," says Sheila Berry. "The jurors didn't make connections."

     The Berrys did. They say Brummer has never been to the Echo Tavern and that Foseid probably saw another woman, located after the trial, who closely resembles Brummer's post-haircut look. 
 

Penny Brummer Behind the wheel of her "California car," enjoying the freedom that was soon to be taken away.

NOT Penny Brummer This amazing lookalike lived in Madison in 1994 and frequented the New Bar at the Washington Hotel.  Could she have been the woman James Foseid met at the Echo Tavern?  Located after Penny's conviction, she refused to speak with defense representatives.

     But the Berrys' real plum is the largely unnoticed testimony of Casey Collins, a toxicology expert who examined Gonstead's body. Sarah, they say, "had consumed at least five beers and three shots in three to four hours [and] had been drinking up to the time she left Jake's." If she was indeed taken up the road and shot, as the prosecution claimed, her blood alcohol level should have been nearly three times what it was at the time of her death. And her stomach should have contained more fluids and alcohol than what Collins' found.

     Collins' testimony, the Berrys say, indicated that Gonstead's actual time of death was between 4 and 5 a.m.-  -several hours after Brummer had returned to her home in Spring Green. But prosecutors, they say, "chose to gloss over and misrepresent this evidence."

     In the Berrys' book, that's the kind of thing that sometimes happens in Dane County.

     HE'S SURE OF IT: Contrary to the norm, the memory of a surprise witness that Sayles used to help convict Penny Brummer of murder just keeps improving. James Foseid, who testified that he heard Brummer making death threats in a bar, says he's certain he fingered the right person, even after seeing the photo of a Brummer look-alike that ran along with a recent Isthmus story on the case. 

     "I'm 100% certain it was Penny Brummer," Foseid this week told Isthmus, adding that the reason he's so sure is that the woman he heard making threats said her name was Penny.

    Whoa! When Foseid came forward in 1994 and testified at length in Brummer's trial, he never mentioned that she told him her name.

     "Foseid is full of it," says Sheila Berry, the author of a manuscript about the case. "He's padding in an attempt to justify his testimony four years ago." Back then, the book notes, Foseid changed his story to correct a problem with time and again to assert that the threats were made against the unnamed woman's "lover," not a close friend, as he had said early on.

     Jack Priester, Brummer's attorney, says that even though the defense discredited Foseid's testimony -- establishing, for instance, that these alleged threats were made two weeks after the body was found -- it had a major impact: "The case was so close; that's all the jury had to hear."