Bad Girls (41 page)

The bottom line for Matthews was that as soon as the MWPD and the prosecutor’s office got hold of Bobbi’s second statement, their investigation—about five days old at that point—ceased. There was no reason for them to go any further. They took one line from Bobbi (during her second statement) and believed it was enough to bring it to a grand jury and get a conviction if the case went to trial. In fact, Matthews was able to draw out of his cross-examination with Boetz and then McAllester that no investigatory body working on Bob Dow’s murder did anything
after
those second statements from the girls had been taken. No investigator went out and backed up (or checked out) with corroborating witnesses, interviews, or evidence what Bobbi or Jen had said.

From where the MWPD had seen the case, they had gotten confessions and the case was closed. There was no need to follow up.

CHAPTER 61

J
IM MATTHEWS BELIEVED
his client was innocent. At best, Bobbi could be brought up on a lesser charge. But, for crying out loud,
murder
? All because she said in a second statement to police (in which several things she admitted to in that same statement could be proven false), “I gave Jennifer the gun”?

Looking at all of the evidence (or lack thereof), one had to wonder how this case had even gotten to this point? There’s that old cliché that a prosecutor could indict a ham sandwich the way in which the system is set up, but this case proved that perhaps indicting a lesbian in the conservative state of Texas was a hell of lot easier than even that.

Interesting enough, in the second statement Bobbi gave after that failed polygraph, the phrases “I gave Jennifer the gun” and a few other lines (including, “I said, make sure”) were underlined in blue pen by someone. It was as if that person thought:
That’s it
.
We got her. There it is!

In Jen’s second statement, she had said: “I walked into the bedroom, got the gun out of a green lockbox that was under another bed. I checked to see if the gun was loaded and it was loaded.... When we were between Graford and Bob’s house, I told Bobbi Jo that I was going to kill Bob. . . .”

Jen doesn’t even claim Bobbi gave her the gun and loaded it; and her statement contradicts what Bobbi said in hers.

Matthews wondered,
Is that not the basis for reasonable doubt, or in disbelieving and tossing out all those statements entirely?

Matthews had a track record of wins behind him. A lot of those came, he said, “because I chose to put my client on the stand. Juries
want
to hear a defendant say she didn’t do it.”

Everyone wondered if Matthews would take that same approach here.

I asked Bobbi
about the alleged marriage proposal Jim Matthews had referred to in his opening statement. To me, this was an interesting development. It showed, in part, how close Bobbi Jo Smith and Bob Dow were.

“Bob did ask me to marry him,” Bobbi clarified. “He said stupid shit all of the time when he was high. I’d always laugh at him. . . .”

This sparked an important point Bobbi later made—one that becomes imperative to insert here in her case as the defense portion of her trial was set to begin. As Bobbi explained to me, “And as for [Bob] wanting to marry me, Mr. Phelps, when people are strung out on drugs, they are not themselves. It’s something I can’t explain to you. You have to just be in the situation. . . .”

Opening Bobbi’s case,
Jim Matthews called a woman, old enough to be a grandmother, who had come forward to say Jen had been bragging about killing Bob Dow while in jail. The woman had been on parole for four years, and she had done two and a half years for a drug-related felony. She was currently on parole for a charge of driving under the influence (DUI).

She admitted to drug and alcohol dependency. Yet, she added, “I’ll always have a problem, but I am in rehab. I attend AA meetings, and I go to Aftercare. And it’s . . . a disease, and I’ll always have it.”

“You know some things about the case, and you felt driven by your conscience and by the ‘do the right thing’ that you needed to contact me?” Matthews asked.

“Yes.”

“Was there a time that you ever met Jennifer Jones?”

“Yes, sir.”

Further along, after talking through dates and times and places, Matthews asked, “Did you ever have conversations with Jennifer . . . about the murder of Bob Dow?”

“Yes.”

“In those conversations, did Jennifer Jones ever make a statement to you that indicated what her motive may have been for killing him?”

Mike Burns objected. There was a fine line surrounding the hearsay rule. This witness could not testify as to what Jen
might
have meant, only what she had said directly.

After a rather heated discussion between the lawyers after approaching the bench, the judge listening closely, it was decided that Matthews could continue, but under certain conditions and restraints.

Matthews asked another round of questions and Burns objected, saying it was “leading.” Judge Ray kicked the jury out of the room so the lawyers could discuss the matter further.

When the jury was allowed back, Matthews was able to get his witness to admit that Jen did not only display zero remorse for killing Bob, but she had also laughed about the murder. It sort of fell in line with Kathy Jones saying earlier that Jen admitted feeling “pretty fucking good” after unloading that weapon into Bob’s head.

It’s called corroborating evidentiary testimony. And here it was.

Burns had no cross-examination questions for the witness.

Since Burns hadn’t, Matthews decided to call Richard Cruz and get his narrative of what happened.

Jim Matthews quickly had Rick Cruz describe how the information he gave to police was secondhand, from Dorothy Smith, and he had no “personal knowledge” of what Bobbi actually had said that day when she returned from Spanish Trace with all of the girls.

Burns asked Cruz a series of questions that spoke to Bobbi’s behavior outside the confines of the family. He even brought up Bobbi’s sexuality, asking, “Are you aware that she engaged in homosexual conduct with other women?”

“I did,” Cruz said.

Bob Dow’s first wife was called. She spoke quite pointedly about Bob’s infatuation with witchcraft and how he collected books on the subject.

Matthews brought in another witness who had come to him and said she had information about Jen. This witness had been in trouble with the law on drug-related charges, too. And she was now clean and sober, too. What was compelling about this witness and the first woman Matthews had called—both of whom had spent time with Jen in prison—was that neither of the women knew Bobbi. They’d had no contact with her.

Under the constraints of the court, this second woman could add nothing other than telling jurors that Jen was happy while the two of them spent time in jail together. The idea for Matthews was to have the witness, even in an indirect way, clarify that Jen was a cold-blooded killer, who did not care about taking another life.

Matthews paced a bit. It was clear he had other things to discuss with the witness, but he worried again about walking that fine line of hearsay.

The judge dismissed the jury so they could hammer it out.

The woman stayed on the witness stand. And without the jury present, Matthews continued asking questions.

She had spent about two and a half weeks with Jen in Palo Pinto County Jail. During that time, she had gotten to know her fairly well. As they talked, Jen said she had murdered Bob solely because “she was tired of being abused” by him.

“Anything else?” Matthews asked outside the presence of the jury.

“All the abuse.”

As Jen talked to her about the murder, the witness testified, she was unemotional. “The tone of her voice and the look in her eyes—she just, there was
nothing.
”

Not one time during that period they talked about the murder did Jen ever say Bobbi had had anything to do with the crime. In fact, the witness said she had not even heard of Bobbi’s name until much later on.

Mike Burns objected to the testimony being offered in front of the jury.

The judge agreed.

And so the witness was released—and Bobbi watched sadly as a potential lifesaver walked out of the courtroom without being able to tell her complete story to the jury.

CHAPTER 62

J
IM MATTHEWS THOUGHT
about having his client testify. It was a gamble every time. Those throws of the dice had paid off for Matthews in the past. But here, with Bobbi, there just weren’t any guarantees that the jury would sympathize with her. What’s more, Bobbi would have to sit on the stand and admit she had lied repeatedly to police. How could she convince the jury she was telling the truth now?

Then there was the question of her sexuality: What if she alienated one juror?

She was done.

“I would just like to ask . . . just to put it on record,” Matthews told the judge as he stood and addressed the court, “that Bobbi Jo Smith and I have had numerous conversations about the pros and cons of her testifying. And as our final decision, she has indicated to me that she does not want to testify. She wants to exercise her right to remain silent.”

This decision would become a contentious issue for Bobbi as we discussed it at length. Bobbi told me she wanted to testify, but Jim Matthews talked her out of it. Matthews told me he wanted her to testify, but Bobbi repeatedly said she was scared and couldn’t do it. It was a dilemma many defendants face afterward, and one I hear as a journalist all the time.

Hindsight.

“Miss Smith,” the judge said. “Stand up.”

Bobbi pushed out her chair with the back of her legs and stood, staring stoically at the court’s keeper.

“Miss Smith, you have thoroughly discussed with your legal counsel the rights that you have, as well as the opportunities that you have, regarding testifying in front of the jury?”

“Yes, sir, I have,” Bobbi answered.

“Have you had ample time to consider the pros and cons, the ups and downs, the goods and bads, the risks and rewards, of doing that?”

This was Bobbi’s chance to speak her mind.

“Yes, sir,” Bobbi said.

“All right. And it is your decision to exercise your right to remain silent and not give testimony in the presence of the jury?”

“Yes, sir.”

“Do you have any doubts or hesitations or questions?”

“No, sir.”

The judge then began a long explanation, pointing out something courts and counselors and judges run into all the time. Judge Ray said the “reason” he was asking Bobbi about this was because it was not uncommon at this stage of a trial to make “tough decisions”—decisions that would affect a defendant’s life. He said how “difficult” a choice it must have been for Bobbi to come to this conclusion and wanted her to be absolutely certain it was what she wanted.

Why?

“Many, many, many, many, many times down the road—six months or a year or something like that—we have people say, ‘Well, my lawyer didn’t do me a good job. If he or she would have allowed me to get up there, I could have had testimony that would have been important or maybe helped me,’” the judge outlined. “So that’s the reason I’m taking this opportunity to give you plenty of time to think about it and to make up your decision.”

Bobbi explained she had indeed been given all of the time she needed to decide. She also agreed she had no questions about the advice her attorney had given her. She said she understood it completely.

“All right,” Judge Ray said, “when we call the jury back in, is it the intent of the defendant to rest at that time?”

Matthews said, “Yes, Your Honor.”

The testimony portion of Bobbi’s murder trial had lasted all of one and a half days. It was finished. Now it was time for both attorneys to wield their best magic at closing, convincing jurors of their truth.

The judge acknowledged how little time the trial had taken when Matthews asked for an hour to give his closing so as not to be forced or rushed through it.

“I’m not likely to give you an hour,” the judge said sternly.

“Okay,” Matthews said disappointedly.

“I was going to ask for thirty minutes,” Burns said, almost as if sucking up to the judge and smacking Matthews’s request down.

“Well, I think that’s certainly reasonable. The testimony only took a day and a half. I’ve tried cases that took a heck of a lot longer than this one and not had an hour to close.”

“Can I compromise at forty-five?” Matthews pressed.

The judge said thirty minutes, but it would be okay to “run over” a bit.

CHAPTER 63

T
HE RIGHT WORD
can sometimes make all the difference. Mike Burns’s colleague gave the state’s closing argument, beginning by thanking everyone. And as the assistant prosecutor (AP), Soria Joslin, continued, little time was wasted getting to the crux of the state’s final argument, as Joslin referred to Bobbi’s second statement as a “confession”—a word that implied guilt right out of the box.

Confession ...

Ah, that’s right: She confessed
.

Once the AP got going, it was clear why Burns had chosen to allow his assistant to put the bow on the state’s package. The AP talked about the state not having to prove “why” one person—or, in this case, two persons—committed murder. “There are a whole host of reasons why it’s possible. Power trip. He was a disgusting human being and they wanted to get rid of him. It was something to do.... These were two teenagers, young and irresponsible, strung out, in love, and not thinking. But we don’t have to prove to you the ‘why.’”

Then the AP focused on the “murder in general,” and how, in aiding and assisting another person in the act of a homicide, makes a defendant in Bobbi’s position “just as guilty of that crime.” Putting the law into the context of the case, the AP detailed, “If you bring a shooter the weapon, you hand that weapon to the shooter, see that shooter go into a room, and that person kills somebody, you are guilty as a party to the murder.”