Bad Girls

by Phelps, M. William

  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

  THE 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.”

  And this was the state’s contention: Bobbi Jo Smith took a pistol, loaded it, gave it to Jen, and sent her under the ruse of sexual intercourse into Bob’s room to kill him.

  From there, the AP broke down the case of Bobbi being a “party to murder.” The focus here was on the state’s “most telling” piece of evidence, “Bobbi Jo’s own statement.”

  That confession.

  The AP never said it outright, but often referred to that second statement. “And that statement alone—that statement!—she tells you she gave the murder weapon to Jennifer. You can look at that statement and see what she said. That statement hangs her on the law of parties as part of this murder.”

  The remainder of the prosecutor’s brief closing was built around Bobbi’s second statement and Jen’s testimony. The state concluded after only a few minutes by saying, “Bottom line is this—Bobbi Jo got the gun. This defendant loaded the gun. This defendant talked about killing Bob. This defendant drove Jennifer over there. This defendant handed her the gun. This defendant saw her put it in her pants. This defendant saw Jennifer walk in that room. This defendant waited.” Then, after pausing briefly, “What you are looking at right here”—and the AP pointed to Bobbi, who looked like a student being scolded by her principal—“is a murderer.”

  What wasn’t mentioned, however, was that the state’s closing consisted of elements from both of Bobbi’s and Jen’s statements. And the only corroborating evidence the state had was an admitted pathological liar who told five versions of this tale of murder.

  Jim Matthews rose. His job was to take the state’s closing and pick it apart, pointing out for jurors how, within those remarks, there were several instances where the prosecution had combined one statement with the next to bumpily slap its case together. Not to mention using a liar to back it all up.

  The state’s case, if one was to look at it in context and entirety, was based not on what a thorough law enforcement investigation had yielded, but rather how each step the MWPD took led to a conclusion it had developed from the start. Matthews needed to get jurors to understand that Bobbi was a lot of things, had committed crimes herself, and had not been the most law-abiding, upstanding citizen. Indeed, all of that was true. But she was no murderer or mastermind behind a cold-blooded, evil act. Bobbi had lied to police once and then, same as Jen, lied again. But since that second statement, Bobbi’s story had not changed.

  “Jennifer Jones,” Matthews began, “murdered Bob Dow, and she did it by herself. She did it without the help of Bobbi Jo. She murdered a friend of Bobbi Jo’s, all on her own. Jennifer Jones murdered Bob Dow all by herself.”

  Matthews talked about the instructions the judge had given jurors at the end of the testimony portion of the case—a very important point of law. Each juror would have a copy of the charges, Matthews explained. He asked that each take the time to read through the second page. Then he quoted from it, stating emphatically, “‘You are further instructed that a conviction cannot be had solely upon the testimony of an accomplice unless the jury first believes that accomplice’s evidence is true.’”

  The state’s case, in the scope of the law, hung on those instructions. Bobbi, therefore, should have been allowed to get up and walk out of the courtroom at that moment. Because it was clear when you looked at Jen’s various versions of the case that she had repeatedly lied. And even if you take Bobbi’s supposed confession into it all, you’d
still have to come out of any decision with reasonable doubt because of the lies.

  Matthews was correct in saying that despite Bobbi’s own statements, despite anything anyone else had said during the trial, the first hurdle in convicting Bobbi was to believe Jennifer Jones. If a juror did not believe Jen, there was plenty of reason to doubt that Bobbi had conspired to commit this crime.

  “Remember,” Matthews stated, “you have to find that the credibility of her testimony—someone who believes in witchcraft, someone who believes that other people can cast spells, someone who believes that other people can read peoples’ minds, someone who believes that somehow Bobbi Jo is this powerful, supernatural-powered person who can cast spells on people and make them commit murder and who can read minds . . .”

  The way Matthews packaged the state’s argument, it sounded fanatical and fantastical. Jen had admitted on the stand, after all, that she believed Bobbi still had the power to control her thoughts. It seemed ridiculous, as if Bobbi was some sort of puppet master. And if she was, why wouldn’t she make Jen tell jurors that Bobbi was innocent?

  It was as preposterous as it sounded.

  The facts spoke for themselves. Jen—along with Audrey and Kathy—later made the claim that Bobbi turned Jen into a doper. But Jen’s own journal told that story, as did Jen, when she admitted on the stand that at the age of fourteen she had started using drugs and sleeping with boys.

  The point Matthews tried to get through to the jury—quite alarming but valid—was that Jennifer Jones did what Jennifer Jones wanted to do from the time she was a young teenager, and nobody ever stopped her.

  He talked about how from the time Jen was fourteen, “she began to get into drugs.” He said it was “long before she ever met Bobbi Jo. At the age of fourteen, she told us that she lost her virginity. That’s long before she ever met Bobbi Jo. Jennifer wanted . . . Jennifer took!” He continued beating this drum, saying how when she was fourteen, Jen “wanted to have sex” and so “she had sex.” When Jen “wanted to get into drugs,” she “got into drugs.” And when Jennifer Jones, he added, “wanted to move into Bob Dow’s house to continue that lifestyle unencumbered by her dad,” well, lo and behold, Jen did that, too.

  Unaltered facts.

  Jen and Audrey admitted Jen had left the apartment at Spanish Trace because she couldn’t do what she wanted, when she wanted to do it, while living under the rule of Jerry Jones.

  Matthews discussed how Jen talked about an endless love she claimed to have for Bobbi, and how Bobbi was “meeting all of [her] needs.” It became clear that Bobbi was “finally the one person in all the relationships [Jen ever had] . . . meeting all [her] needs.” In fact, as Jen had testified herself, “she felt so strongly about that, that even the unsupported fear that Bobbi Jo might leave her drove her to commit a cold-blooded, perverted murder.” Then Matthews offered a solid point, adding how Jen refused to tell the court “that Bobbi Jo was having sex with Bob Dow. That didn’t bother her! That’s not consistent. That’s not human.”

  In other words, how could Jen be so committed to Bobbi, be so in love with Bobbi, and not feel jealous about Bob and Bobbi having sex? It went against human nature.

  “You just love them, and they are everything to you,” Matthews said. “I don’t care if they have sex with other people.” He paused. “That’s just not reasonable.”

  Matthews got into Bobbi’s “unconventional lifestyle” and how she shouldn’t be punished for the way in which she chose to live her life. It was a way of life, Matthews contended, that Bobbi “chose, nevertheless, long before Jennifer was on the scene. And you know what, it never led Bobbi Jo ever getting into trouble with the police until Jennifer Jones came on the scene.”

  Bobbi had never been arrested. Jen was the one who stole cars and broke windows and got caught breaking and entering before she was old enough to drive a car. And this led Matthews to make a great point: “We heard zero testimony that Bobbi Jo ever said a thing about, ‘I want that watch. I’ll leave you if you don’t give me that watch.’ Jennifer made that decision. Jennifer decided [to steal], not Bobbi Jo.”

  Another fact Matthews pointed to was that Bobbi Jo Smith and Bob Dow shared sexual partners. It was Jen, jealous and controlling, who wanted Bobbi all to herself, Matthews insisted.

  It was Jen who became jealous of Bob Dow. . . .

  Jen who decided to move out of Bob Dow’s party house . . .

  Jen who decided to go back over there after they left . . .

  Jen who decided to smash the back window and break in (without Bobbi or the others knowing what she was doing) . . .

  Jen who let Bobbi and her mother into the house . . .

  Jen who told Bob to meet her in the bedroom . . .

  Jen who had sex with Bob . . .

  And it was Jen who shot Bob Dow in the face during intercourse.

  Bob Dow literally had locked his mother in her bedroom. But as far as Jen, Matthews said, she was never “locked in a closet.” There were “no chains.”

  “No ropes. No force.”

  Matthews broke down all of the stories Jen told. The first was “that Jennifer Jones murdered Bob Dow . . . in self-defense.” The second was that Jen “broke down and cried and said, ‘Boy, I’m tired of the lie. I’m just going to tell the truth this time.’ Maybe she did. Maybe she actually had a moment of conscience because, you know, even Detective Brian Boetz said that’s the story he believed.” He finished that thought by talking about how “a professional with training” like Boetz, a cop with “experience in interviewing witnesses, in taking statements,” would pick up on that sort of thing.

  The third story, Matthews said, “surprised everybody—even the prosecutor when he was asking her.... The third story was self-serving. How? She was sitting in front of a jury. . . . But that jury, she’d already pled guilty.”

  Jen had admitted guilt and fought for a lesser sentence.

  The fourth story, Matthews said, was the one Jen told during Bobbi’s trial. It was the “witchcraft” story and how all of the mind games became part of Jen’s new life narrative.

  Oddly, Matthews never mentioned the Texas Monthly article, or how the timing of publication might have hurt Bobbi and soured jurors on her.

  Matthews was interrupted at one point by the judge, breaking any momentum Matthews might have accrued. The judge let him know he had five minutes left. And perhaps Matthews did go on far longer than he should have, but the guy’s passion for his client’s innocence took control.

  Matthews concluded after a long rant about Jen trying to take two lives: Bob Dow’s, of course, and now Bobbi’s. “Remember, [Jen] admitted [she was] trying to get a good deal with the prosecution’s office. She called [the prosecutor]. Why? She was looking for a good deal. . . .” He then said how Jen had wanted to look “good on her parole papers when” the time came for her to face the board. Then he concluded with one final thought: “Please stop the train. Thank you.”

  Mike Burns stood. The state had twenty-three minutes left on its allotted time; Burns chose to close out the state’s case himself.

  He talked about a tangled web of deception, bordering on taking things over the top by quoting a Sir Walter Scott poem in what seemed like a terribly unwarranted, forced analogy, warning jurors not to “fall into that trap.” Then he asked jurors to come along with him on a “road trip.” Not down the highway leading the girls into Arizona and California, where one might reckon with the truth being in that “pretty fucking good” statement Jen told her mother, but the “highway of deliberations.”

  This argument went on and on, and it felt tired and contrived at this final stage in the trial, even though the entire trial took a mere twelve hours. Burns went through the instructions Judge Ray had given, begging jurors to convict Bobbi on those instructions alone. He quoted from Bobbi’s second statement again and again. He asked jurors to take Bobbi’s second statement as gospel and line it up with those instructions and find her guilty of the crime of murder
.

  If there was one thing clear by the time both sides concluded, it was that this case, maybe more than any other in recent history, embodied the protection a defendant is given within the law of reasonable doubt. Because by the time a juror or a court watcher finished listening to all of this nonsense, there were so many varying stories of this murder narrative, there was no way any reasonable jury member, following the law and jury instructions, could convict. It didn’t seem possible.

  CHAPTER 64

  INSIDE THE JURY deliberation room, according to a source inside the courthouse that day, jurors went toe-to-toe. The noise coming from the room was quite loud. At one point, a bailiff walked over and put his ear to the door, his hand on the doorknob, and walked in. It sounded as if jurors were at each other’s throats.

  Intense arguments had turned heated. Jurors were going back and forth, passionately discussing the case. As it turned out, on two separate occasions, the bailiff had to step into the room to make sure jurors weren’t physically fighting.

  That summed up this case and how polarizing it had become.

  In the end, however, it took only six hours—half the length of the court case—to seal Bobbi’s fate and send her packing for a trip to Gatesville Prison.

  How long?

  Fifty years.

  Five decades.

  Bobbi was sick when she heard that guilty verdict announced.

  Jim Matthews was surprised. He thought for certain reasonable doubt was going to set Bobbi Jo Smith free.

  The three appeals court judges—not all in agreement—denied Bobbi Jo Smith.

  “One of the judges ruled in my favor,” Jim Matthews told me. But two others didn’t. “What they ruled on was the way that the judge explained the law to jurors.... I felt that that was incorrect because the way the judge explained it to the jury left the door open to say that they could find Bobbi Jo guilty if Bobbi Jo gave Jennifer the pistol she used to kill Mr. Dow. That’s not true, though. Because it has to be that Bobbi knowingly and intentionally knew that when she gave it to her that she wanted to use that particular weapon to kill Mr. Dow. That she gave it to Jennifer with the intent that she go murder him.”